Shortly after arriving in Boston, Louis sat down and wrote a long letter to his brother-in-law Charles Nagel in which he talked about his new life, his work with Chief Justice Horace Gray, and his and Warren’s prospects. Although he missed his friends and family in St. Louis, “I do not repent my decision…. I have much to hope for here.” A few days later he wrote to his mother and reiterated his belief that he had made the right decision. The tensions of separation from family, knowledge that they disapproved of his move to Boston, and embarking on a new career with no resources in hand or any assurances of success worried him. “Surely I am undergoing the crucial test,” he told Alfred, “and I hope I will stand it.”
Brandeis, of course, did more than stand it. Within a relatively short period of time he could confidently report that the law partnership would be a success. He practiced in Boston for more than thirty-seven years, becoming one of the city’s most successful attorneys. During this time the practice of law underwent a major transformation, due to the great industrial changes that occurred in the United States in the latter part of the nineteenth century, a revolution that affected all aspects of American life. Christopher Langdell’s effort to transform the education of lawyers marked an early response to these forces; Louis Brandeis and his peers oversaw the transformation of the legal profession itself.
LOUIS ARRIVED IN BOSTON at the beginning of July 1879, and almost immediately began his work as secretary to Horace Gray, chief justice of the Massachusetts Supreme Judicial Court, the state’s highest tribunal. In essence, he fulfilled the functions now assigned to law clerks, and his experience with Gray informed how Brandeis would work with his own clerks years later in Washington. Gray had been appointed to the Massachusetts court in 1864, after serving as its reporter for ten years, and in 1873 became chief justice. His opinions there, and on the U.S. Supreme Court, to which he would be named in 1881, evidenced clear thinking and painstaking attention to detail. Gray had something of a reputation for arrogance and impatience, and Louis had been a bit hesitant about how this might affect their working relationship. As it turned out, those aspects of his personality appeared only on the bench; in person, “he is the most affable of men, patiently listening to suggestions and objections & even contradiction.”
The Massachusetts court in those days heard a number of cases in the spring term. Afterward the judges met in conference and decided the outcome, and then Gray would assign decisions to the judges, who would in turn write their opinions over the summer recess. Brandeis met with Gray each morning. They would take out a particular case, go over the record and briefs, and discuss various authorities, and, as Louis noted, Gray welcomed argument and discussion on the major points. After they sketched the outlines of the opinion, Gray would scribble a rough draft and then dictate it to his clerk for transcription in a clean hand.
Brandeis treasured these mornings, because for the first time since law school he had an opportunity to engage in serious debate about legal issues. Gray treated him, he reported, as “a person of co-ordinate position. He asks me what I think of his line of argument and I answer candidly. If I think other reasons better, I give them; if I think his language obscure, I tell him so; if I have any doubts I express them and he is very fair in acknowledging a correct suggestion or disabusing one of an erroneous idea. In these discussions & investigations I shall learn very much.”
Louis did indeed learn, more, perhaps, than he realized at the time. Gray, a craftsman on the bench, reinforced in Louis the necessity of taking pains and carefully marshaling one’s arguments. Although Gray listened respectfully to his young clerk’s views and used them to hone his own arguments, no question existed as to where the authority resided. Years later, Mr. Justice Brandeis would encourage his own bright young men from Harvard to question him and to raise points for his consideration, but after they had done so, the final decision lay in his hands.
He also saw a fine jurist weigh matters carefully, acknowledging that while in the end one side or the other would win, merit usually existed in both parties. Brandeis recognized that in his practice he would serve the interests of his clients, but he intuitively understood that in some instances his clients might be in the wrong, and if so, it would be better for them if they acknowledged this and chose a strategy that would be in both their and the other party’s better interests. Not only did this concept appeal to Brandeis’s idealistic streak, but in grasping this idea, Brandeis and others would change the role of lawyer from simple advocate to counsel. Ironically, at the time of his nomination to the Supreme Court, some critics charged Brandeis with lacking a judicial temperament. In fact, Brandeis as lawyer exercised a judicial temperament throughout his career at the bar.
The work with Gray gave Louis a small income, but enough so that he could pay his own way. Sam Warren had offered to underwrite the office expenses the first year, and invited Louis to live in the Warren house on Mount Vernon Street to save rent. Brandeis stayed with the Warrens a few days upon his arrival in Boston, but then found rooms of his own with meals at Mrs. Smith’s boardinghouse at 21 Joy Street, where he described himself as “very pleasantly fixed.” He would, however, spend a great deal of time at the Warrens’, where, according to Martin Green, Louis became “like another son to the family.” Brandeis found a kindred spirit in the older Mr. Warren’s belief in empirical fact, analytical clarity, and numbers. He got along well with Sam’s siblings, became legal adviser to Cornelia Warren and Fiske Warren in their various undertakings, and wrote a will for Susan Warren, Sam’s mother.
The connection with Warren promised well, he told his family. “There are many fine points about the man both in mind & character and it looks to me as if he would be a success. His ‘push’ is great—the same bulldog perseverance & obstinacy which brought me here will, I think, pave a way which he seems determined to make.” The two took an office on the third floor of 60 Devonshire Street for $200 a year (“very cheap everybody says”) and decided to indulge in one extravagance, a messenger boy for $3 a week. They delayed, however, deciding on just what form their affiliation would take—a simple sharing of office space or an actual partnership. Sam had always wanted the latter, but Louis wanted to hold off that decision for a little bit. After all, he would not even be able to practice law until admitted to the bar. Although Massachusetts ordinarily accepted lawyers from other states without an examination, that custom required at least a few years of actual experience, which Brandeis clearly lacked. As it turned out, Louis did not have to wait until the scheduled fall examination. Chief Justice Gray intervened, and with his sponsorship Louis was admitted to the bar on 29 July “without an examination and contrary to all principles and precedent.”
Chief Judge Horace Gray of
the Massachusetts Supreme
Judicial Court
Upon his admittance, he and Sam decided to form a partnership in name as well as in effect. “What I have seen of him since I am here has raised my opinion in every respect and I concluded that a closer union of our interests was desirable.” Louis had apparently harbored some worries because, as he told Alfred, Sam’s “seeming haughtiness [had] made him enemies at Cambridge.” But Warren had recognized this as a problem and had laid aside this demeanor, adopting one more suited to impressing clients with confidence in his ability. According to custom, the initial name in a firm went to the partner first admitted to the bar. Louis, of course, had been admitted in Missouri, but Sam had earlier been admitted in Massachusetts, where they would practice. “I don’t give a rap,” Sam wrote to Louis about the name, “but I think it worthwhile to observe proper etiquette,” and he left the matter to Louis. The firm would be known as Warren & Brandeis until 1897, although Sam left in 1888 to take over the family paper business upon the death of his father.
In the meantime, as Sam and Louis prepared to settle into their new venture, they still had time to socialize and enjoy the summer. The Warrens had a second home in Beverly, where Louis, along with various members of the Warren family, swam, rowed, sailed, and played tennis. He also renewed friendships with men he had known at Harvard and, thanks to Warren, met Oliver Wendell Holmes Jr., in whose firm Sam had worked. On the evening of Louis’s admission to the bar, he, Sam, and Holmes gathered in Sam’s room, where they drank a mixture of champagne and beer, “telling jokes & talking Summum bonum,” or, rather, Holmes and Warren had talked, while Louis stretched out on a lounge. Six months later Louis was still enjoying the social life in Boston. He wrote to his sister Amy that he had been out to dinner several evenings in a row, including one reception at a Mrs. Macfarlane’s where the conversation had been entirely in German. The good lady wanted him to play the lead in a German play she planned for her next entertainment, but Louis managed to nix the idea. “Tonight I take dinner with Marcou and hurry to a whist party at the Parker House. Have no more idea of whist than a Bauer of Gurkensalat, but that makes no difference. Played one game this week at the Fitch’s and won.” And a few days earlier he had gone to the Holmes residence, where his new friend read him the draft of an article he had written on trespass and negligence.
Sam Warren
SAM AND LOUIS EXPECTED S. D. Warren & Company to be their initial client, but the ledger notes for their first case, in which the paper company sued a Martha E. Berry, show that the defendant could not be found. Despite this “failure,” the Warren company would remain with Warren & Brandeis, and its successor firm, for generations. Working with the Warren company proved an important part of Louis Brandeis’s education in business. While he was familiar with his father’s work, he had viewed it as a boy and had not been expected to master details of finance, payroll, taxes, wholesale and retail prices, or the myriad other aspects of doing business. The Warren mills, then producing about eighteen tons of paper per day, dwarfed Brandeis & Crawford not only in size but in the complexity of its operations. Louis took seriously the idea that if he were to provide good legal advice to a corporate client, he had to know the business, and he set about doing so, going to the factories, meeting with supervisors and office staff, and asking questions. Many years later he told John Warren that he deemed his work with the company “a most important part of my education in business, and you among my tutors.”
The firm soon acquired clients in New York and Rhode Island through the connections Sam and Louis had made at Harvard. Walter Carter, a New York attorney (and in later years the father-in-law of Charles Evans Hughes), made it a point of looking out for bright Harvard Law graduates and then steering business their way. Charles Bradley, their professor at Harvard Law and former chief justice of Rhode Island, had important clients in that state, and called Brandeis in to argue a case before the Rhode Island Supreme Court. While in Providence, Brandeis stayed at Judge Bradley’s house, and reported to his sister, “People have said so many kind things about my briefs and arguments that I hope something more substantial than glory may come out of it.” Aside from a hefty fee, Brandeis’s performance did indeed win him friends and eventual clients among Rhode Island lawyers and businessmen. The two young lawyers also began acquiring a reputation for legal acumen. Horace Gray said that he considered Brandeis “the most ingenious and most original lawyer I have ever met, and he and his partner are among the most promising law firms we have got.”
A few years later Marsden Perry, a businessman in Providence, sent his lawyer, Arthur Lisle, to Boston to find the best lawyer in that city to handle a complicated matter for him. Lisle first went to see a man he knew at the General Electric Company, who promised to find out; the man contacted Lisle a few hours later and told him that the lawyer he wanted was Louis Brandeis. In the meantime, Lisle had gone over to the Westinghouse Company and talked with its chief counsel, who promptly advised him to see Brandeis. Being a thorough man, Lisle also visited two banks where his employer did business, and in each of them received the identical response—the best lawyer in Boston was Louis Brandeis. Another businessman found Brandeis in a similar manner. A Boston banker referred to Brandeis as a lawyer of unusual ability and character. “There is a man who will give you a dollar’s worth for every dollar paid. He’ll give you straight advice.” Moreover, he’s a fighter, “and he generally wins.”
In the spring of 1880, Louis wrote to his brother, “Our [clients] are treating us pretty well now. We have little new business to speak of, but the cases begun before the vacation are coming to a head now and we look forward to a busy half year. Much of my time has been devoted to the Providence case.” Although in the initial decision Brandeis’s clients had lost, as most people assumed they would, on rehearing Louis managed to get the court to reduce the judgment against his clients by a significant amount. The firm picked up another paper manufacturer, Train, Hosford & Company, whose affairs generated a great deal of legal work, including four suits then pending in New Hampshire. In addition, William Henry Hill, an investment banker, had bought a controlling interest in the Sanford Steamship Company and asked Warren to serve as clerk of the company, which meant that Warren & Brandeis handled the company’s legal business.
All told, the firm of Warren & Brandeis seems to have been a success from the start. On 2 January 1881, in sending New Year’s greetings to his sister, Louis jokingly mourned, “Yesterday was a Sad Day. We buried irretrievably a half dozen of the most beautiful and lucrative lawsuits—and all for the love of our clients. Yes we settled up the complicated New Hampshire transactions by an agreement wonderfully favorable to our clients. From love of them we did it.—But I fear ‘The expedition of my violent love, outran the pauser reason,’ no more trips to New Hampshire—no nothing. The only consolation is that we get our opponent for a client.” In their first year of business, the firm took in a little over $3,400, but of that $435 came from work for Justice Gray. For their second year Warren & Brandeis had gross earnings of $3,600, with net profits of $3,000, or nearly $59,000 in current buying power. Little wonder that Warren could confidently assert that “the success of W&B is assured.”
(During this period the two young lawyers could not afford to turn away clients, and one day a woman came in with her young son complaining of a problem she was having with the local government where she lived, and asked Brandeis if he could help. It was a simple problem that Brandeis quickly resolved. A few days later the woman and her son returned. She thanked him for his service and asked what she owed him. Brandeis realized the woman did not have a great deal of money, but her pride demanded that she pay something. “Do you think a dollar would be fair?” he asked. She said that would be very fair, and gave him a dollar, which Brandeis—according to the son’s later recollection—turned around and gave to him and told him to go buy candy.)
Although the firm did well with the paper companies and other large clients, it also sought business from smaller firms and individuals, many of whom were Jewish. While he did not practice his religion as did his uncle Dembitz, Brandeis never denied his origins; nor did he broadcast them. From the time he set up practice in Boston, he paid membership into the United Hebrew Benevolent Association, and he was a charter subscriber to the founding of the Federation of Jewish Charities in 1895. Louis also renewed his friendship with Jacob Hecht, a prosperous merchant whom he had met during his law school days. The Hechts held open house on weekends, inviting an interesting mix of young artists, intellectuals, and professionals, and Louis was a regular visitor. In February 1880, Hecht retained him to sue a member of the United Hebrew Benevolent Association for back payment of annual dues, a matter that eventually led Brandeis to argue his first case before the Massachusetts Supreme Judicial Court. Brandeis acted for a number of Jewish clients and on behalf of local Jewish institutions, but contrary to one historian’s arguments Jews never became the mainstay of his law practice, nor were they a majority of its clients.
While Sam worked the Brahmin side of town, Louis sought business in the German-American and Jewish communities. “I must soon go to the Turnverein, and try to be captivating,” he wrote to his sister, “and get some clients.” Prior to Warren & Brandeis, one man, Godfrey Morse, had handled many of the accounts of German-American Jews, but the growing prosperity of Boston’s middle-class Jewish community generated far more business than a single lawyer could conduct. Now some of that business, thanks to Hecht, began to flow to 60 Devonshire Street. Jacob Hecht asked Louis to draw up his will, and at his death in 1903 the Brandeis firm acted as executor of his estate. Other prominent Boston Jewish families such as the Liebmanns, the Franks, and the Weils, along with their extensive familial contacts, joined the roster of clients. William Filene’s Sons Company, later to be the Filene’s department store, became clients, and the two brothers, Edward and Lincoln, would be longtime allies of Brandeis’s in his reform work. That Brandeis accepted Jewish clients is not surprising, nor that, thanks to Jacob Hecht, he utilized his contacts among Boston’s Jewish leaders to gain additional business. But despite his substantial income over the years, his contributions to Boston Jewish charities remained minimal, he preferred that his name not be published in the list of contributors, and he took neither an important membership role nor any leadership position in Jewish affairs until he joined the Zionist movement more than three decades later.
The historian Allon Gal claims that Brandeis suffered anti-Semitism in Boston almost from the time he set up practice there and that this experience later led him into Zionism; he bases this assumption on what Gal sees as the extensive number of Jewish clients on the firm’s client list. How and why Louis Brandeis came to Zionism is the subject of another chapter, but it is far from clear that Jewish clients are evidence of anti-Semitism or that Brandeis saw himself as a victim of such prejudice, certainly not in these early years of practice.
That anti-Semitism existed in Boston is beyond doubt. Massachusetts in general and Boston in particular remained one of the most ethnically and religiously homogeneous states in the Union until the middle of the nineteenth century, when Irish immigrants began to arrive and immediately ran into a stone wall of prejudice. Bias against Jews seems to have been more abstract than particular, so that people like Brandeis, Rabbi Solomon Schindler, and his successor at Temple Israel, Charles Fleischer, moved easily among the Brahmin elite, even while the successors of the Puritans did their best to cut off immigration of Jews, Catholics, and other aliens into the United States.
There would certainly be bias against Brandeis later, when, in his reforming zeal, he attacked some of the icons of the Boston business and financial community. In these years, however, his correspondence reveals no signs of anti-Semitism, although starting around 1910 he would be quite candid in his letters to Alfred about clubs closed to Jews. Instead, his letters to his family about his social life are full of visits to different homes, meeting a variety of people, many of them members of the Brahmin elite, and few, if any, appear to have been Jewish. Much of this entráe may be credited to his being Sam Warren’s partner, and some historians believe that Brandeis would have been totally excluded by the city’s social elite otherwise, but he had not been excluded from gentile homes while at Harvard, and Sam did not accompany him on all his social outings.
IN HIS LETTER to Alfred detailing the firm’s success in its second year, Louis warned that he did not expect the firm to enjoy as much income in its third year. “If I were Sc’ty of Treasury making out estimates I should prepare the country for a strong deficit in the budget.” In fact, he really did not expect to make a great deal of money for the next fifteen years or so, “but I do expect to have a high old time for the twenty-five following.” Louis appears to have been joking because only a short while later he and Sam hired their first associate, D. Blakely Hoar, who immediately took over nearly all of the firm’s real estate business. Over the years, as the volume of business grew (by the time of Brandeis’s nomination to the Supreme Court in January 1916, the firm’s running log of cases had reached over 22,000), the office took in additional men. Charles F. Chamberlayne came to the firm as a cum laude graduate of Harvard Law School in 1884, and stayed for five years. William Harrison Dunbar, the son of the distinguished Harvard economics professor, graduated from Harvard Law in 1886 and clerked for one year for Horace Gray, by then a member of the U.S. Supreme Court, before entering the office where he would ultimately become a partner. George Read Nutter, hired in 1889, quickly proved so capable that Brandeis began referring to him as “my first lieutenant.”
Louis and Sam never had a formal partnership agreement, and the firm’s records indicate that at the end of the fiscal year, after deducting expenses, they divided the profits equally. In May 1888, Sam’s father died, and the younger Warren left the practice to take over the family’s paper interests. Apparently, Sam did not foresee this to be a permanent move, and intended at some point to return to law practice. As a result, the firm remained Warren & Brandeis, with Sam’s name appearing on the letterhead, until 1897, although for all practical purposes Louis Brandeis was sole proprietor. In 1889, in order to be closer to his friend, Brandeis moved his office to 220 Devonshire Street, the same building that housed the corporate offices of S. D. Warren & Company. Although Sam never practiced law there, the office occupied by William Dunbar was known as “Mr. Warren’s room.”
By 1896 it was obvious that the obligations of running the family paper business would never allow Sam Warren to return to practice. In that year Dunbar, Nutter, and the other juniors made it clear that the office needed to be reorganized. While they had no trouble recognizing Brandeis as not only the titular but also the effective head of the practice, they chafed at what they saw as little better than hired-hand status. No matter how well they performed their work, they received little personal recognition. Dunbar, a sensitive man due, perhaps, to his partial deafness, wrote to Brandeis, “I suppose that every professional man of ordinary ambition hopes to make for himself some reputation; to have his work, if in any degree successful, count not only as a source of income but as giving his name some individual value. This result it seems to me he can reach only by having his name known and by working as a principal. Our present arrangement I think does not permit of this. My work yields to me almost literally no return except a pecuniary compensation.” The problem, Dunbar went on, seems “to me the necessary consequence of an organization like ours in which there is not in fact any real partnership between the different persons associated together.” He spoke, he added, not only for himself but also for George Nutter and Ezra Thayer, who had joined the firm in 1892 and would later be dean of Harvard Law School.
Louis Brandeis on horseback in Dedham, ca.1885
Brandeis initially did not respond well to Dunbar’s letter, probably because he did not want to alter what was for him an ideal situation. Brandeis greatly enjoyed a particular type of case the first time he dealt with it; after that he was more than happy to delegate work to others, claiming that they needed the experience for their own professional growth. By having junior associates, Brandeis could assign to them much of the dull but necessary bread-and-butter business of any law firm, dealing himself with more interesting matters. But he recognized the justice of Dunbar’s complaints, and in 1897 changed the firm’s name to Brandeis, Dunbar & Nutter, giving to them the real partnership they sought.
No formal partnership agreement ever existed. Brandeis retained nearly two-thirds of the profits at this point, a figure that would diminish somewhat over the years as new partners were added and older ones received larger shares. Nonetheless, to use the modern parlance, Brandeis was the firm’s “rainmaker.” Older clients stayed with the firm and new ones came to it because of his reputation. While more and more of the work would be done by his partners as Brandeis took on reform efforts, he still oversaw the business and would step in when necessary. No longer did he have to go searching for new clients; they flooded through the doors. Years later he recalled that one day Samuel Clemens (Mark Twain), dressed in a shabby overcoat, showed up at his office and wanted to retain Brandeis on his behalf in a libel suit. Louis listened patiently, but advised the great author not to sue.
Once Brandeis reorganized the office, he took steps to ensure that such dissatisfaction never again occurred. He devised a personal formula that took into account each man’s work and rewarded each of them generously, not only through salary, but through recognition, advancement into partnership, and greater individual authority. The rewards went not only to the lawyers but also to the growing support staff in the office. He hired E. Louise Malloch, then a girl in her teens, as a bookkeeper in 1895, and within two years had assigned her responsibility involving his personal investments. When he went on the Court in 1916, Miss Malloch took over full responsibility for his financial affairs. Alice Harriet Grady joined the firm as a secretary straight out of a business school, and she soon proved invaluable. No one in the office could type or take dictation as fast as she did, and Brandeis often used her skills as a court reporter. She bought a typewriter at her own expense and worked at nights during a trial so that Brandeis could have a record of the previous day in his hands when court resumed the next morning. She soon became Brandeis’s personal secretary, and over the years he gave her increasing responsibility; according to one report, she was the highest-paid secretary in Boston. Brandeis believed so strongly that the two women contributed a great deal to the firm’s success that they each received a small percentage of the profits. After her boss left the practice, Miss Grady went to work for the state bureau on savings bank insurance and rose to become deputy commissioner.
WARREN & BRANDEIS made it a rule that it would not hire anyone who had not graduated from law school (preferring men from Harvard) and was the first firm in Boston to adopt that rule. By the time Brandeis went on the Court in 1916, the firm had six partners and seven junior associates. Once in the office, the new men took part in the full spectrum of the firm’s business. Adolf A. Berle Jr. recalled that despite his being junior, he had exposure to a wide range of issues and even helped draft a brief to the Massachusetts high court. The bulk of the work, as he recalled, involved numerous small matters of commercial law. Aside from Brandeis, no one in the office seems to have had any political interests. Although a number of them were involved in various civic enterprises, none of Brandeis’s associates ever took on the type of reform work he did.
Brandeis in the firm’s early years handled much of the trial work as well as appeals to higher courts. “I have spent much time of late before juries,” he told his sister, “and am becoming quite enamored of the Common Sense of the people.” He argued, successfully, his first case before the U.S. Supreme Court on 6 and 7 November 1889, and would, over the years, return to that forum a number of times. After the reorganization, however, he began to assign more court work to others, mentoring them until he believed them ready for the task. Joseph B. Eastman had not even been admitted to the bar when, working under Brandeis’s supervision, he wrote the bulk of the brief submitted to the Interstate Commerce Commission in the 1913 New Haven case. When Edward McClennen joined the firm in 1895, Brandeis recognized in him the potential for a talented litigator. Brandeis assigned McClennen the Old Dominion Copper Company case in 1905, one of the largest in the firm’s history, with millions of dollars in dispute. McClennen wrote the briefs, argued the case in trial court, and then took the appeal to U.S. Supreme Court. In 1914, as Brandeis attempted to juggle a half-dozen reform projects, relief arrived when McClennen came down to Washington and took over a major case involving the government-ordered dissolution of a merger between two western railroads. As Brandeis told his wife, it “will be a very interesting subject of study & he is sure to do himself credit.” Brandeis later said that Ned McClennen was the best lawyer he ever knew.
By 1904 the firm had outgrown the space it had at 220 Devonshire and moved into new quarters on the top, or eleventh, floor of the Compton Building at 161 Devonshire Street. The lease had been secured during the building’s construction, and as a result the floor plan differed markedly from most commercial space at the time. Each partner, as well as his secretary, had a private office, with a large area set aside for a library, along with several conference rooms. While having private offices constituted a luxury, the partners recalled the furnishings and the space as “austere.” The firm stayed in those offices until 1939.
IN ORDER TO UNDERSTAND how Warren and Brandeis and their associates practiced law, one must take cognizance of the enormous changes then taking place in the United States. People living at the end of the twentieth and beginning of the twenty-first centuries can truthfully claim they are living in the midst of a major economic transformation. Globalization has altered the marketplace, and outsourcing has greatly impacted the domestic workforce. The introduction of computers both in business and in the home, and the attendant ubiquity of cell phones and of e-mail, have changed the way we communicate, do business, and even run political campaigns. With this technological revolution have come economic, political, social, and cultural dislocations that will affect how we live for decades.
The Industrial Revolution of the late nineteenth century had an even greater impact. The United States had been primarily an agrarian nation prior to the Civil War; after 1866 not only did it industrialize rapidly, but people left farming communities to move into cities, so that by 1924 more people lived in urban than in rural areas. The processes of industrialization had, of course, begun well before Fort Sumter, but they burst into full bloom after Appomattox. The gross national product in these years increased twelvefold, accompanied by the seemingly overnight creation of new industries in steel, oil, and minerals production. The value of exports from American mills and factories climbed from $434 million in 1866 to $1.5 billion in 1900, while imports more than doubled. To staff these new factories and mines, millions of immigrants came seeking better lives. Between 1815 and 1860, five million people had migrated to the United States, mostly from England, Ireland, and to a lesser extent the German states; between 1865 and 1914, twenty-five million arrived, mostly from eastern and southern Europe. The steel baron Andrew Carnegie exulted: “The old nations of the earth creep on at a snail’s pace, the Republic thunders past with the rush of an express.”
These cataclysmic economic changes affected every aspect of American society and would lead to the progressive movement in which Louis Brandeis played such an important role. But even earlier, they affected the American bar and how lawyers served their clients. First, the lawyer’s role shifted from advocate to counsel. Advocacy did not disappear, but lawyers tried to steer their clients along paths that would avoid litigation. Second, the general practitioner, operating out of a one-or two-man office, gave way to the modern large law firm, marked by specialization and commercialization. In these two areas Brandeis took an active part, but he avoided other traits that marked so many successful lawyers of the late nineteenth century—a narrow and limited view of the legal profession and a conservatism that attempted to freeze the status quo and ignored the moral problems of industrial change.
Prior to the Civil War, the legal profession reflected the social fabric of the country. Law offices had been small, staffed by an attorney and a clerk or two, or in some instances by two or three lawyers who shared office space and books. They dealt with fairly simple problems and conflicting interpretations of law. Lawyers did not ignore facts, but the facts had been simpler and more easily understandable; in most legal disputes the intelligent layperson could understand the facts, and even the law, with as much clarity as the lawyer. Men came to lawyers, essentially, when all other recourse had failed and they stood ready to fight in court. The attorney’s duty had been to argue on his client’s behalf and make the strongest legal presentation possible. Given this situation, the best lawyers had been the generalists; in fact, there had been few specialists of any kind. A lawyer who hoped to earn his living in an expanding frontier society had to know property as well as water law, civil as well as criminal procedure.
All this began to change after the war. As society and industry grew more complex, one-to-one relationships gave way to multilateral undertakings; large, complex business dealings overwhelmed the older, simpler transactions. Now it would be too expensive to go wrong, too costly to call in a lawyer at the last minute, too damaging in both time and money to litigate even if, in the end, one came out victorious. Businessmen, instead of charging ahead and then calling in lawyers if they ran into trouble, began summoning their attorneys at the beginning, to find out what the law said they could or could not do, how they could avoid going to court. “A lawyer’s chief business,” said Elihu Root, a prominent New York attorney, “is to keep his clients out of litigation.”
This shift from advocate to counsel, and the adjustment to the new requirements of practicing law, proved difficult for many.1* It had been one thing to enter a case when all of the facts had been available and then sort out those that would be most helpful in arguing the client’s case; it was something entirely different to guess what the future would be. New modes of business operation required a lawyer to pay close attention to economic trends, and to evaluate conditions in which he had little expertise. The creation of trusts and estates and corporate organizations called for planning and analysis of a large number of variables that included matters of economics, sociology, psychology, labor, and business, as well as law. The lawyer of the future, Holmes predicted in 1897, would be not the law-book scholar but “the man of statistics and the master of economics.”
The old-style generalist normally handled almost every type of case, but the new era saw the emergence of the specialist, first in commercial law as a whole and then in the various aspects of it. Soon men devoted their entire careers to real estate or trusts or receiverships or stock issues. Since big business needed all of these skills, a law firm with large industrial clients needed to have them all under one roof. Instead of small one-person offices, the new law firm would have to be big (although not even the largest firms at the end of the nineteenth century compare with modern firms that have hundreds of partners and thousands of associates and support staff in offices around the globe). In the 1890s, Paul D. Cravath in New York began hiring young lawyers who had law degrees—preferably with high marks—from elite schools. He paid them a salary as “associates,” and after a five-year probationary period the brightest became partners, while the rest moved on. By the 1920s the Cravath system had become entrenched throughout the country.
While this division of labor may have provided better legal advice on particular problems, it had limitations as well. Very few lawyers could see beyond their own specialty or subspecialty to understand the larger problem. Earlier generations of lawyers had been respected as men of affairs; no one expected specialists to be anything but narrow. Businessmen might seek their skills for specific problems, but not their advice on questions of policy. Soon industrial leaders stopped asking, “What should I do?” with its moral implications, and started demanding, “Tell me the way I can get this done!” Lawyers thus abdicated their responsibility as moral instructors and confined their activity to devising the best way for corporate clients to achieve certain ends, some of them of dubious legality. “Instead of being advisers, lawyers were often collaborators in their clients’ short-sightedness,” Felix Frankfurter charged. “The lawyers did their clients’ bidding instead of illuminating their minds to understand something about the forces with which they were dealing.” The independent practitioner, admired for his good counsel, gave way to the hired hand working in a law factory. “The practice of law,” claimed one critic, “has been commercialized,” while another accused lawyers of having motives “as sordid and activities as mercenary as can be found in any other occupation.” Brandeis’s partner George Nutter clearly shared this view. Lawyers are no longer persons whose advice is followed, he declared, but people “who are hired to carry through what their employers want to have done. One purchases legal brains now in the same way as he purchases industrial labor or anything else.” The close attachment of lawyers to business interests diminished their status as independent professionals and the respect from the public they had previously enjoyed.
THE BUSINESS CLIENTS who came to see Warren & Brandeis had as much need for advice and for access to specialized legal knowledge as did the large industries who patronized the big New York firms. As the firm developed and took in other lawyers, Brandeis encouraged them to develop specialties. “The organization of large offices is becoming more and more a business,” he told William Dunbar, and also a professional necessity. In the new office each man must find his proper place and make that field his own. He thus serves not only the firm’s clients but its members, who will look to him for guidance when dealing with matters touching on his expertise; he in turn will look to his colleagues when needing information on matters beyond his special knowledge. Whether or not one liked this type of organization, Brandeis noted, it had proved “the most effective means of doing the law work of this country,” as demonstrated by the success of the great New York firms.
At the same time, Brandeis did not want an office of narrow-minded specialists, and he urged young Dunbar to seek broader intellectual horizons. “Cultivate the society of men—particularly men of affairs.” This knowledge, as well as that of the law, is essential; clients would not appreciate his legal advice unless they also believed he understood their businesses. “Knowledge of the decided cases and the rules of logic cannot alone make a great lawyer. He must know, must feel ‘in his bones’ the facts to which they apply…. The man who does not know intimately human affairs is apt to make of the law a bed of Procrustes.”
Brandeis did not spout generalities in his advice to his younger associate, but spoke from his own experience and belief. The modern law firm had to be well organized, and it had to have recognizable centers of expertise. But he also viewed with horror a large office that had nothing but specialists, men who were so absorbed in their narrow fields that they could not fill the new role of lawyer as counsel. In order to carry out that role, a lawyer had to be a man of experience, one who could take the information provided by the client and judge it not by some abstract formula but by the yardstick of experience. When a young man wrote to Brandeis declaring he wanted to be a lawyer and felt he was wasting his time in business, Brandeis sternly admonished him that a lawyer needs “knowledge, not only of law, but of affairs, and above all, of men and of human nature. The time you spend in business may ultimately prove to be the most profitable preparation.” And he practiced what he preached.
From the time he had been in law school, Louis had understood the importance of facts, and that in dealing with clients he had to know more than they did. Years earlier he had written: “Know thoroughly each fact. Don’t believe client witnesses. Examine documents. Reason; use imagination. Know bookkeeping—the universal language of business; know persons…. Know not only specific cases, but whole subjects. Can’t otherwise know the facts. Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” Knowing facts not only helped him to analyze a case; it impressed clients. After all, why should people come to him unless his knowledge and perspective were greater than theirs?
ONE OF THE BEST EXAMPLES of how Brandeis served as counsel and how he used knowledge of the facts to solve a problem involved William H. McElwain, the head of a large shoe-manufacturing company in New England. As Brandeis explained, McElwain did not lack “the money-making faculty” or ambition and organizing ability. He started out with nothing and built up his firm’s annual sales to more than $8.6 million in a little over a decade, when he died an untimely death at age forty-one in 1908.2* McElwain came to see Brandeis in 1902, seeking his help in getting his workers to accept a wage cut without a strike. His workers had little basis for their complaint, he believed, since he paid them well and provided a safe working environment.
Brandeis promised to look into it, and began familiarizing himself with the shoe-manufacturing business by talking not only to McElwain’s managers but also to the leaders of the labor unions at the plants. He learned that although the workforce did indeed enjoy high wages, they received that pay only for the weeks they worked. The shoe business ran on cycles. When salesmen sent in their orders, factories would work on full shift to fill them. Then men would be laid off until the next batch of orders came in. Most manufacturers closed their factories completely at least twice a year for several weeks at a stretch, and often had two additional periods of slack time, when the men worked partial shifts.
McElwain’s “good wages” proved to be illusory, since what a laborer would make over a year came to less than a living wage. The men understood that, and resisted the wage cut in good times knowing that there would be no money at all for the slack seasons. Brandeis also learned that this situation permeated the entire shoe-manufacturing industry; McElwain treated his workers no worse than did his competitors. As Brandeis later told a reporter, “The more I studied it the more it seemed to me absurd that men willing to work should have to be idle during ten or fifteen weeks of each year.” When shoe manufacturers talked to him of seasonal conditions and averages, he exploded. “I abhor averages. I like the individual case. A man may have six meals one day and none the next, making an average of three per day, but that is not a good way to live.”
When Brandeis explained this to him, McElwain agreed that something needed to be done, but what? That is how the industry had operated for as long as he knew. Brandeis suggested that McElwain reorganize the sales end of his business. Salesmen went out on the road with shoe samples for styles that would be made the following year, and they would travel until they had accumulated a fair batch of orders before filing them with the factory. However, some retailers would not put in orders until the last minute, not wanting to tie up either capital or shelf space ahead of time. Brandeis suggested that the salesmen file their orders earlier, and not accept orders from retailers unless they came in well ahead of the delivery date. Then McElwain’s factory managers could plan the work for weeks, even months ahead. Set up the workforce so that the men can work regularly and so that there need be neither overtime nor enforced layoffs. Do not accept last-minute “rush” orders, since these will upset your schedule; instead, promise the customers that they will get their delivery on the date they wanted, but only if they submitted their orders in accordance with the production schedule.
McElwain agreed, and within a few years had completely revamped the shoe business. His men—and there were thousands of employees at the company’s several plants—now worked more than three hundred days a year. Not only did McElwain regularize his labor force, but by imposing order on the sales force, he also rationalized the business as a whole. Brandeis liked to describe William McElwain as an enlightened businessman who recognized a problem and devised a creative and socially useful solution, without ever mentioning his own role in solving the matter. But McElwain had come to Brandeis because he respected the lawyer’s knowledge both of law and of facts. He knew that Brandeis would not propose a solution until he had familiarized himself with the situation, and in doing so, Brandeis soon discovered the key piece of evidence that McElwain had overlooked. No strike occurred, no wage cuts took place, the company grew more prosperous, and its workers enjoyed high and—more important—regular wages.
The solution to McElwain’s problem is perhaps the best illustration we have of how Brandeis married his idealism and his pragmatism. At his client’s request he undertook to find out what each side wanted, and whether these were legitimate claims. Once he had established the facts, the pragmatist fashioned a creative solution, one that worked. To be able to do so, he needed the facts, he needed the trust of his client, and he needed knowledge of the business world to devise a plan that fit the needs of the real world.
Not all the advice that Brandeis gave involved multimillion-dollar businesses with thousands of employees. At one time one of his clients wanted to enter a partnership with another businessman who also happened to have Brandeis as his lawyer. The two men spoke at great length and worked out all of the details except the financial arrangements. They knew, however, that they wanted to be partners, and so they drew up a rough partnership agreement and took it to Brandeis. “You know our business circumstances,” they told him. “Find out some more. Then take our rough agreement, put it into proper form, and you write in the dollars and cents just as you think they ought to be, and we will go ahead on that basis.” Only a man whom his clients trusted would have been given such a task.
UNFORTUNATELY, NOT ALL EFFORTS at being what he called “counsel to the situation” worked out as well as the McElwain venture. During the hearings over his nomination to the Court, some of the opposition centered on cases where Brandeis had tried to be fair to all parties, but in doing so had allegedly left the clients who hired him believing he had betrayed their interests. Brandeis learned that in order for him to be effective in such a situation, all parties had to act in good faith. If not, the results could be disastrous.
One case involved P. Lennox & Company, a tanning factory in Lynn, Massachusetts, in financial difficulty. Personal notes executed by James T. Lennox, who operated the tannery with his father, as collateral for loans to the business were about to come due, and neither Lennox nor the tannery had the money to pay them. Lennox came to see Brandeis in September 1907, accompanied by his major creditor, Abe Stein, and Stein’s attorney. Stein, a friend of Lennox’s, wanted to see if any way could be found to help resolve the problems. Unlike Stein, Lennox’s other creditors had no personal relationship to him and could not be expected to be as forgiving as Stein. One of the major creditors, the banking house of Weil, Farrell & Company, was a client of the Brandeis firm, and Stein hoped that Brandeis could use his influence to stop the creditors from forcing Lennox into bankruptcy.
In the conference among the four, which a stenographer recorded and transcribed, Brandeis made it quite clear that if he agreed to become involved, “the position I should take … would be to give everybody, to the very best of my ability, a square deal.” The statement reflected both the notion that Brandeis would serve as counsel and his moral belief that he had a responsibility for ensuring that all sides be treated fairly. Lennox, speaking for himself and his father, assured Brandeis that they wanted to pay “a hundred cents on the dollar” to their creditors. Brandeis suggested that Lennox appoint George Nutter as trustee, to whom Lennox should assign his business assets for the benefit of the creditors. Operation of the business under an assignment might persuade the creditors to give the company more time to pay off its notes rather than pushing for bankruptcy and liquidation. It is clear from the transcript, as Stein’s lawyer kept pushing Brandeis on what his role would be, that Brandeis had no interest in acting as Lennox’s lawyer simply to work things out to his advantage; rather, he would be involved so that the ultimate solution would be “fair to all.” When Lennox asked Brandeis point-blank if he would act as his counsel, Brandeis said, “Not altogether as your counsel, but as a trustee of your property.”
Had Lennox followed Brandeis’s advice, perhaps the business might have been salvaged. It is also possible that the accumulated debts had reached a point where the business could not be saved. But after signing the documents and agreeing to Nutter as trustee, James Lennox then refused to cooperate, constantly complaining to Nutter about his meager weekly draw of $100. Then evidence surfaced showing that the older Lennox had been hiding assets clearly belonging to the firm. Finally Nutter felt he had no recourse but to take the company into bankruptcy upon petition of the creditors. At this point Lennox expected Brandeis to come to his aid, and expressed anger when he learned that Brandeis and Nutter were not acting on his behalf but seemed to be serving the needs of his creditors in the bankruptcy proceedings. Lennox then retained the noted Boston attorney Sherman Whipple to represent him in court. Whipple, confused by what Lennox had told him of his transactions with Brandeis, went to see him and demanded to know the facts of his apparent abandonment of a client. As Whipple testified at the nomination hearings:
Brandeis said, in substance, “of course, that would be a serious situation, but it is not the situation at all; I did not agree to act for Mr. Lennox when he came to me. When a man is bankrupt and can not pay his debts, … he finds himself with a trust, imposed upon him by law, to see that all his property is distributed honestly and fairly and equitably among all his creditors, and he has no further interest in the matter. Such was Mr. Lennox’s situation when he came to me, and he consulted me merely as the trustee for his creditors, as to how best to discharge that trust, and I advised him in that way. I did not intend to act personally for Mr. Lennox, nor did I agree to.” “Yes,” I said, “but you advised him to make the assignment. For whom were you counsel when you advised him to do that, if not for the Lennoxes?” He said, “I should say I was counsel for the situation…. I was looking after the interests of everyone.”
In 1916, Brandeis’s opponents made the Lennox case a key part of their argument against his confirmation, claiming that this notion of “counsel to the situation” violated all proper notions of lawyerly behavior. Brandeis failed to make clear to Lennox either what his own role would be or what he expected Lennox to do vis-à-vis his creditors. Defenders of Brandeis, then as now, have argued that his stance not only flowed from the general work of the lawyer as counsel to a client but reflected creativity and a moral position that too many in the profession had abandoned.
The notion of “counsel to the situation” has seemed, even to some of Brandeis’s defenders, somewhat vague, but it is a role that over the years has become part of the lawyer’s practice. Geoffrey Hazard has commended the notion as “perhaps the best service a lawyer can render to anyone.” The American Bar Association, on the other hand, has never quite figured out what to do about the practice. The ABA adopted its first set of aspirational standards, the Canons of Professional Ethics, in 1908, and canon 6 declared it “unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.” When the ABA adopted a Model Code of Professional Responsibility in 1969, it allowed lawyers to represent multiple clients if they provide full disclosure and “can adequately represent the interests of each,” and may also serve as arbitrators or mediators for their clients. More recent attempts to provide guidance, such as the American Law Institute’s Restatement of the Law Governing Lawyers, also failed to come up either with workable definitions or with guidance. A profession used to seeing its members primarily as advocates for their clients’ interests has trouble defining a practice that seeks fairness for all parties.
There are clearly problems with acting as counsel to the situation. One, as witnessed in the Lennox case, involves poor communication. Not all lawyers are capable of determining what is in the best interests of all concerned. In addition, the interests of the different parties may not be easily amenable to a common solution, or their interests may change. This is what happened in another case brought forth in 1916 to demonstrate Brandeis’s unfitness to be a judge, the matter of the Warren will.
When Samuel D. Warren Sr., the father of Brandeis’s law partner, died on 11 May 1888, he left a simple will. His houses and all their artwork he left to his wife, and after some specific bequests to his brothers and sisters one-third of the remaining estate went to his widow, and two-thirds were to be divided among his five children. Because none of the children had gone into the family paper business, the older Warren suggested that it might be sold, and he named his wife, his son Sam, and Mortimer Mason, a cousin and minority partner, as executors to continue the business for eighteen months while his heirs decided on its future. At the time the Warren mills employed eight hundred workers and made annual profits of between $300,000 and $400,000. All members of the family agreed that for the sake of the workers as well as their own financial interests, the business should be continued. Sam agreed to leave his law practice to head up the enterprise and turned to Louis Brandeis to work out the details. As Moorfield Storey, the well-known Boston attorney who would later represent Sam’s brother Fiske in the legal fight, noted, it was a “common practice” for a lawyer to represent an entire family in connection with a trust or business, despite potential conflicts of interest.
Warren and Brandeis created a plan whereby the three trustees leased the property to Samuel Warren, his brother Fiske, and Mortimer Mason. The Mills Trust, as it came to be known, would run for thirty-three years, or until the death of all the heirs. At least one of the operating trustees was always to be outside the family. The profits were to be distributed on a basis of five-fifteenths to Mrs. Warren, and two-fifteenths to each of the children. The trust also authorized the partners to create a reserve fund and make improvements to the mills costing up to one-third of the net income. Mrs. Warren and four of the five children lived in or around Boston, took part in the discussion, and approved the plan. Sam then sent a copy of the trust, as well as details of proposed earnings, to his brother Edward (known as Ned), a connoisseur of art then living in England. Sam explained that given a variety of factors facing the paper industry, the 1888 earnings might well be the highest they would see for a number of years. Ned signed the documents and then settled back to receive his share of the income, which he promptly invested in art.
Sam left the law practice that he loved so well, took over the business, and apparently did a good job. The mills weathered the hard times of the early 1890s, and no one in the family suffered any marked diminution of income. Although his younger brother Fiske nominally entered the business and was one of the operating partners, Fiske’s true passion lay in radical politics, and he became an activist in the anti-imperialist movement of the late nineteenth and early twentieth centuries. Only Ned seemed unhappy, and felt that Sam’s management of the mills did not give him the money he wanted to live abroad and indulge his passion for art. Nonetheless, peace reigned until the death of Susan Warren in 1901, leaving a vacancy on the operating board. Sam’s next-youngest sibling, Henry, had also died, leaving the choice to either Ned or his sister, Cornelia. Neither Sam nor Mason believed Ned capable of serving, and each man preferred Cornelia. Ned would have none of this, and when earnings fell off, he grew angry because the company refused to advance him money. He then retained an attorney to look into the property arrangements, and in December 1909 brought suit alleging that Sam had personally profited from his dealings with the trust property and asking for a large financial settlement from Sam and the company. Thus began a protracted legal battle that ended only after Sam, bitter and depressed over Ned’s attacks on him, took a gun and killed himself in February 1910.
One wonders what Brandeis—or Sam—could have done in 1888 that would have served the family’s interests better. Brandeis (whom most scholars credit with coming up with the plan) made it possible for the family to continue to run the business and reap its profits, rather than having to put it on the auction block. Modern lawyers note that the trust had a number of defects, some of which reflected then-current practice, but no one at the time could have anticipated the angry dissension within the family. The terms of the arrangement could not have been clearer, and all of the Warrens, with the exception of Ned, seem to have understood that no matter how well the mills had generated profits during the older Warren’s lifetime, one could not guarantee future income.
During the legal battle Ned made all sorts of accusations, primarily that Brandeis had pulled the wool over their eyes so that the family would not see that only Sam could benefit from the arrangement. Even Moorfield Storey and Sherman Whipple, both of whom opposed Brandeis’s nomination, declared this nonsense, and also rebutted the claim that Brandeis had violated professional ethics by representing all of the parties. The arrangement seemed to him perfectly fair, Storey testified, and “I should have done perhaps very much as Mr. Brandeis did if I had been in his place.” Whipple had looked into the matter exhaustively and declared that “the entire transaction was free from any taint of dishonest motives or intentional fraud.”
Because he had been so friendly with the family and because they all seemed to trust him, Brandeis no doubt felt comfortable in drawing up the Mills Trust. He and Sam both had a highly developed, some would say overdeveloped, sense of morality, and neither would have done anything to jeopardize the interests of the other heirs. Sam had written, “I cannot think of the family and its doings without including you as a most influential part. You have encouraged our right impulses.” During the suit brought by Ned, both Fiske and Cornelia made quite clear that they shared Sam’s trust in Brandeis. Over the years the two men had discussed many matters relating to both the business and the trust, and if, as Ned Warren complained, there had been a breach of faith by Sam, then the same accusation could have been leveled against Louis.
But if men like Storey and Whipple defended his legal ethics, Louis still must have wrestled with charges that he had abandoned Sam in his hour of need by not representing him in the lawsuit. At the time Ned brought suit, Brandeis had been retained by Collier’s magazine in the Pinchot-Ballinger hearings and had given up just about all other pursuits for this work. (See chapter 11.) Sam knew about it, and agreed that Edward McClennen would represent him. But it did bother Louis to hear that “Warren’s death was hastened by the ingratitude of Brandeis’s desertion of Warren at a critical moment because Brandeis thought his duty to public matters had priority over the claim of Warren to be defended by him against unhappy attack.” Brandeis had in fact hesitated at taking on Collier’s, and did so only with Warren’s full consent.
At the time of Warren’s death the trial judge had recently placed the matter in the hands of a special master to investigate the truth or falsity of the charges. Sam’s death brought an end to the proceedings, and the remaining family members bought out Ned’s share of the trust, the only money he received. Upon hearing of this plan, Brandeis was furious and wanted to fight the suit to an end to show the baselessness of Ned’s charges. By then a grieving family wanted no further exhibition of Ned’s character.
ONE SHOULD NOT THINK that all Louis Brandeis did as a lawyer involved researching different industries, giving out sage advice to businessmen, or getting himself into trouble through new legal stratagems. On many occasions litigation could not be avoided, and once involved, Brandeis would be a tireless, some said a ferocious adversary. His extraordinary range of knowledge, some from research and some from his wide reading, often made him more knowledgeable on a subject than so-called expert witnesses. Time and again he would trip up the opposition by knowing more about the business than they did. Nor did he disdain courtroom work; to the contrary, he loved it. During a quiet spell he wrote to Alfred, “I really long for the excitement of the contest—that is one covering days or weeks. There is a certain joy in the draining exhaustion and backache of a long trial, which shorter skirmishes cannot afford.”
While Brandeis recognized the need for specialists, he remained a generalist throughout his career. According to his law partner Edward McClennen, the firm’s business had from the start been general and unusually diverse. “It did not fall into a single class. It broadened rather than narrowed with the lapse of time.” The firm counted among its clients manufacturers, merchants, investors, labor unions, and benevolent associations, as well as individuals. McClennen believed that the firm did not have any criminal practice, nor work in patents or admiralty, although he believed that Brandeis may have occasionally worked in these areas. (In fact, during the 1880s, before McClennen’s time, Brandeis had gone to England to negotiate a patent license on a bleacher for S. D. Warren & Company.)
Clearly, other lawyers besides Louis Brandeis helped steer the profession away from litigation and helped create the role of lawyer as counsel. In addition, other lawyers proved fierce advocates for their clients and helped shape the modern, specialized law firm. And just as plainly, other lawyers also demonstrated great technical skill, mastery of the facts, and creativity in their practice of the law. But few of his contemporaries required the level of moral certitude that Brandeis did, either for himself or for his clients.
Time and again one heard stories of clients coming in to ask Brandeis to take on their cases. If in winter, they kept on their coats, since Brandeis deliberately kept the temperature low in his office so that people would not be tempted to chat. They would ask his help, make their case, and then be subjected to a grilling on who had the right. If Brandeis decided that his client stood in the wrong, he would tell him, and suggest reaching an accommodation as quickly as possible. If in the right, and Brandeis took the case, the client would thank him, knowing that his interests would be well protected, and then, teeth chattering, would go out into the winter’s warmth. Or, if there appeared to be right on both sides, as in the McElwain case, Brandeis might seek a solution that would be in everyone’s best interest.
At the nomination hearings in 1916, Brandeis’s foes made much of “unethical” practices and sought to bring witnesses to testify that Brandeis did not practice law according to the established norms of the bar. The testimony of one such witness backfired on them, and tells us a great deal about this most unusual aspect of Brandeis the lawyer.
In 1907 a proxy fight broke out between E. H. Harriman and Stuyvesant Fish over control of the Illinois Central Railroad. The Harriman interests hired the New York firm of Sullivan & Cromwell to represent them and to secure proxy votes against Fish. The firm retained a young lawyer named Waddill Catchings to help manage the campaign, and he traveled to major cities to line up law firms to handle the proxy fights in their localities. Brandeis’s opponents called Catchings to the stand in 1916 to show that Brandeis was a hypocrite, since at the same time that he battled the New Haven Railroad, he accepted a fee from another railroad baron, E. H. Harriman.
Brandeis, Dunbar & Nutter had been a correspondent for Sullivan & Cromwell for many years, meaning that when the New York firm had a client who needed representation in Boston, or legal work that needed to be done in Boston, they would utilize the Brandeis office. Catchings went to see George Nutter, who normally would have handled this matter. Nutter informed him that they would not be able to accept the commission unless Mr. Brandeis agreed, and explained that Brandeis was at that time heavily involved in a battle against a railroad merger. Furthermore, Nutter said, “the firm would not accept such a retainer unless Mr. Brandeis was convinced of the justness of our position; that he would not care to have his firm associated in a matter of such nature without personally passing on the merits of the contest.” Catchings went into the senior partner’s office, and “the hardest interview I had during the whole campaign was with Mr. Brandeis in convincing him of the justness of our cause.”
Senator John D. Works asked Catchings what Brandeis wanted to know, and apparently he wanted to know everything. “I went into it from beginning to end, every argument we had and every argument Mr. Fish had, and why I believed we were entitled to the support of Mr. Brandeis.” At last, after two hours of intense questioning, Brandeis agreed, and although he took no active role in the proxy fight, the firm did act for the Harriman interests. As Catchings summed up, “It was an unusual experience. I had occasion to retain other lawyers and no one ever raised that question.”
WARREN & BRANDEIS MADE MONEY almost from the beginning, and after Sam left to run the family paper industry, the firm continued to flourish. Louis personally prospered and must be counted among the top-paid lawyers in the country. The range of incomes in the profession varied greatly. Young lawyers in the large firms made more than those in small offices; two-thirds of the lawyers practicing in New York at the end of the nineteenth century made about $3,000 a year; those working in the Cravath-model firms typically made thrice that amount. Of the fifteen hundred lawyers in Philadelphia in the late 1880s, fewer than one-third were thought to be self-supporting, and no more than one hundred had an income of more than $5,000 annually. In Boston of the 1890s, the best estimate is that perhaps a half-dozen men made $20,000 a year, a dozen more $10,000, and perhaps another quarter made $5,000; the remaining three-quarters earned far less. Brandeis, of course, ranked in this top echelon. In 1890, at the age of thirty-four, he earned more than $50,000 a year (well over $1 million in current value, and with no income tax), while 75 percent of the attorneys in the United States made less than $5,000. As late as 1912, when he devoted much of his time to public service, he received $105,000 from his practice. By frugal living and conservative investments, he had accumulated his first million by 1907, and another million before he went on the Court in 1916. Despite a lower income and significant gifts he made to family and to causes during the 1920s and 1930s, he died leaving an estate of more than $3 million.
The young man who told his mother that he needed to test his ambition and talents had succeeded, perhaps beyond even his expectations. He understood the legal needs of the new industrial society, and he crafted a law practice and a firm built around satisfying those needs. A generalist in an age of increasing specialization, he pioneered in the role of counsel, originating the idea of counsel to the situation, a practice that, unfortunately, most of his colleagues and even some of his clients misunderstood. At a time when lawyers as a profession appeared to be abandoning their moral compass, he held on to his.
For Louis Brandeis, law always provided the medium through which he could exercise the two great driving forces of his life, idealism and pragmatism. Once he accepted the lesson he learned from Judge Gray that both parties to a dispute might have right on their sides, the idealist in him wanted to find a solution that would be fair to all. He said he never wanted to be somebody’s lawyer, a person hired to do what another desired; rather, he wanted to have clients, people who would listen to him and understand not only their position but that of the other side as well. Once that had been accomplished, the pragmatist, the legal craftsman, would step in to fashion a solution.
Louis Brandeis had indeed done well. Now the time had come to do good.
1* Sometimes clients also had difficulty adjusting to the new strategy. One of Brandeis’s longtime clients as well as friends, Edward Filene, later wrote to him: “I recall especially of how mystified I was at first at a great lawyer’s efforts to keep his clients out of court…. I could not comprehend the strategy. But you taught me the wisdom of conciliation.”
2* McElwain and Brandeis also became good friends, since both men shared a commitment to ideals as well as pragmatism. Upon McElwain’s death after an appendicitis operation, Brandeis wrote: “I am greatly distressed at the death of my friend McElwain. He was in my opinion really the greatest man of my acquaintance—and the greatest loss to the Commonwealth—possessing the rare charm of great ability, courage, high character and personal charm…. I think had he lived he would have emerged from business into the field of his higher ideals and become a commanding figure in the Commonwealth.”