Practical Moral Philosophy for Lawyers A Teacher's Questions Prelude:We gain insight through questions. Questions matter. To be without questions is to be without curiosity about the human condition. There are fewer questions when we stick close to what we know, follow the conventions of practices, do what others do (and what others will approve our doing). It is our questions that speak to how we proceed from the world we know most immediately to the world that lies beyond the cover stories we tell about our lives. Ethics is a friend to questions, to questions that slow us down, and prompt is to reflect on what we are doing. We all have, or should have, questions about where we are, what we do, what it means to become a lawyer. These questions, and the way they are pursued, play an important role in our lives as students and lawyers (and law teachers). We are awash in answers; the key turns on whether we have the right questions. Our questions tell us about the kind of life we live and the life it is possible to live. In lawyer ethics we address all manner of questions, many of them with no good answers. We might note that lawyers too, in their work with clients deal with questions: what happened? when? with what result? what documentation was created? what did you do then? what do you want to do now? These questions necessarily implicate the lawyer in moral discourse with the client. [See Thomas Shaffer, The Practice of Law as Moral Discourse, 55 Notre Dame L. Rev. 231 (1979); Thomas L. Shaffer & James R. Elkins, Legal Interviewing and Counseling 249-271 (St. Paul, Minnesota: West Publishing Co., 3rd ed., 1997)] Some students complain about the appearance of perplexing questions. They expect teachers to have answers and are annoyed by questions that are not answered. Law students are known for their practical and instrumental concerns, and legal education seems well suited in the form of a how-to-be-a-lawyer instrumentalist pedagogy. Jay Feinman and Marc Feldman observe that: Most legal educators are anti-intellectual about the area of their primary professional concern: the content and method of legal education. This anti-intellectualism is characterized by an unwillingness to reflect on the goals of legal education, the content of the curriculum, the methods of teaching, and the ability of law school graduates to practice law competently. [Jay Feinman and Marc Feldman, Pedagogy and Politics, 73 Geo. L. Rev. 875, 875 (1985) ("Making legal education more reflective ultimately calls into question the dominant self-image of the legal profession.")(p. 876)] How can we begin to address the questions we have about our profession and about our lives as lawyers? In what sense, are your questions about the professions directed to the moral and ethical dimension of lawyer work? Should we begin this inquiry into lawyer ethics by articulating the questions we have, first about ethics, and then those about lawyers? Is there a way to do ethics, to learn what a lawyer needs to know to be ethical, and learn it in a way that honors the ethics we bring with us into law? What obstacles might we expect to encounter in a study of lawyer ethics? What hinders, impedes, and obstructs our efforts to learn ethics? What resistance do you find, in yourself and in your colleagues, to engaging in moral discourse and holding the practices of the legal profession up to critical scrutiny? When we encounter resistance to ethics, thinking ethics, talking ethics, what are we to do? How can we, knowing what we know about the rampant skepticism about ethics, go on? How can we honor the reality of this skepticism and insure that it does not incapacitate us? How would you begin a course of conversation about lawyer ethics? With what mix of skepticism and hope should such a conversation be forged? Knowing what you know about your colleagues and yourself, how would you proceed? How would you direct the conversation? What "texts" would you read? What would you say to preface the conversation, to insure good fortune on the journey to understand ethics? What goals might we envision for a sustained conversation about lawyer ethics? Can it matter in any significant way that we choose to talk about the moral quality of the lives we live and how our moral sensibilities are shaped and distorted by the work we do as lawyers? How does our ethics talk shape our ethics as lawyers? What does it mean to be an ethical lawyer? Can a good lawyer be a good person? Whether a person concerned about ethics (and being a good person) can be a good lawyer is a recognized starting point for thinking about a moral life of lawyering. One might even make a stronger claim, that the question is the starting point since the question is recognized by both apologist and critic of the amoral partisan lawyer. [See, Charles Fried, Lawyer as Friend: The Moral Foundations of the Lawyer Client Relationship, 85 Yale L. J. 1060 (1976) (Argument to justify the amoral role); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 192 (1978) ("It is a singularly good thing, I think, that law students, and even some lawyers and law professors, are questioning with increasing frequency and intensity whether professionalism is compatible with human decency -- asking, that is, whether one can be a good lawyer and a good person at the same time."); Thomas Shaffer, American Legal Ethics (New York: Matthew Bender, 1985) (Critique of the amoral, partisan role)] What role do the ethical rules of our profession play in being a good lawyer? Is there a professional morality for lawyers different and distinct from ordinary morality? If so, how do these two moralities work? How do they conflict? How are we to respond to the public (or should we say political) rhetoric that holds lawyers in disdain? What role does legal education play in our efforts to be good persons who are good lawyers? What kind of moral world is law school? How is professionalism taught in law school? How does professionalism mold and shape a lawyer's identity? How can we know what our ethics are and how our ethics are being shaped by what we are asked (and consent) to do as students of law? How does legal education prepare us to engage in moral discourse, with other lawyers, with clients, with ourselves? Home Page   Course Readings