Practical Moral Philosophy for Lawyers

The Confused State of Lawyer Ethics Pedagogy: Scenes From the Classroom

I join a colleague in his classroom as he has graciously consented to allowed me to observe his teaching. He knows I am interested in how we teach legal ethics and he has expressly stated during our conversation that he takes pride in the course he teaches. I take my seat on the first day of class. My colleague stands in the front of the room, motionless, a blank expression, waiting for the class to begin. A diagram of the State Bar Association has been drawn on the chalk board before the first students arrive.

The first information imparted to the students is that the course is offered twice a week in two hour sessions and that they will receive two hours credit. My colleague goes on to note that during this first class meeting he will provide a general orientation to the course and in the second hour of the first session will present a summary of the state disciplinary procedures.

We have, he says, "come a long way since the Dark Ages when we operated under the old canons of ethics." The problem with the canons, he argues, is that they "didn't tell us specifically what conduct was required of lawyers." He points out that the Code of Professional Responsibility (the precursor of the more recent Rules of Professional Conduct) i divided into ethical considerations and Disciplinary Rules (DR's). "B learning the Code (that is, the body of ethical rules) you will have a fine background in legal ethics." He does, however, suggest that these rules, while providing "excellent standards," have many "gray areas." So many "gray areas, that "the American Bar Association has now worked up a new version of the Code and this is the source of the rules we will study."

"Why the interest in legal ethics today," he says, and proceeds to answer his own question. "There are really two reasons: Watergate and consumerism (the idea that someone will make you whole)."

"What is the importance of this course in your life as a lawyer?" Another question, with answer provided: the course is required "because you want to keep your law license after you get it. Lawyers in the past have been sanctioned primarily for stealing money. Now lawyers can be disciplined for missing the statute of limitation in a case. Let's say you're faced with a conflict of interest between your interest and that of your client. You have to be sensitized to conflicts.You need to learn to recognize potential areas of difficulty. If you mishandle your client's affairs, that client will fall into the hands of another lawyer who will proceed against you. Today it is necessary for both old and young lawyers to try to protect themselves. The practice of law becomes more complicated every day."

"We are under a heavy burden. Lawyers are officers of the court. When you receive your law license you are an officer of the court. The judiciary could not function without lawyers. All judges must be lawyers."

"In this state the Supreme Court sets the standard for lawyer conduct. Before we discuss these standards we should consider this question: How does the lawyer feel about the loss of his license? He has a wife, family. He has respect. It's a horrible thing to prosecute a lawyer. I die a little every time we do it."

"Where is all this good disciplinary law found? In the rules. You should read the rules and know them backwards and forward. One question which I know you will wonder about: Why don't they organize the course book around the Rules. I wish I could answer that."

"In addition to the Rules, we have state case law. In this course, there will be an emphasis on the law and in particular, state law, as opposed to federal law."

We are now exactly 40 minutes into the first hour when my colleague asks "Do you have any questions?" I am not surprised at the silence. "Well, since there aren't any questions, and we do have a lot of material to cover, I'll go on. There will be assignments for each class period for the remainder of the course."

"Let me talk now about disciplinary procedures. This may be getting the cart before the horse. After today we'll take up the standards, the violation for which you can be punished."

"I do want to say one more thing before we talk about disciplinary proceedings. When you think about ethics, you think about morals, preaching. I'm not here to preach. What you have to learn is black letter law. What we'll take up here doesn't even deal with morals. For example, is it appropriate for a lawyer to establish a legal clinic and call it "American Legal Clinic." You'll learn that you have to use your name. This doesn't involve morals; it's the law. For example, a disbarred lawyer seeks to work for a lawyer. That can't be done. That doesn't involve morals, it's legal ethics. I am going to try to tell you what the law is. We'll also talk about situations where what the lawyer does in his private life has nothing to do with his clients; e.g., failure to file income tax returns. The long arm of the court reaches out to sanction even what a lawyer does in his private life."

"Now, I want to give you a bit of history. You should have picked up an outline for the course. You'll notice on the outline that the first meeting of the state bar was held in 1872." At this point, the woman sitting next to me begins to file her nails. "You might be interested to know that at this meeting there was a fifteen course banquet, what we might call today 'a grand affair.'" Behind me one student whispers to another: "This course will drive me crazy."

Colleagues Talking About Ethics Teaching

After observing scenes like the one described here and assuming that such teaching might have an impact on how law students think about the role of moral and ethical concerns in professional life, I have, over the years talked with colleagues at various law schools about how they envision the teaching of lawyer ethics.

The most salient point in these conversations was how we have adopted a legalistic perspective in our thinking about the pedagogy of lawyer ethics. One colleague referred to his ethics course as basically "a statutory interpretation course."

I teach about rules. I try to teach them on two levels. One is that there are certain rules and on occasion the rules actually tell you what to do. Although I try to teach that--there's a lot of room for interpretation. In a sense I consider it a statutory interpretation course.

* * * *

The way the rules are designed leaves a tremendous latitude for behavior.... [I]t doesn't establish a concrete floor. Some things are real clear. But even in conflict of interest questions, which I deal with in my practice constantly, there are no clear answers.

This teacher admits that the rules of legal ethics do not provide answers and that "there's a lot of room for interpretation." But instead of using the classroom as a place where our "interpretation[s]" are explored and we determine the limits of the "latitude for behavior," these openings are closed by converting the course into a "statutory interpretation course." That this colleague recognizes the absence of "clear answers" in the ethical rules does not translate into teaching legal ethics as ethics but rather ethics as a body of rules, another kind of law.

Legalism so pervade the ethics teacher's world view that it becomes difficult to take advantage of the insights and openings that suggest a need for conversation and moral discourse. The legalistic perspective is often justified by the most prosaic and mundane reasons:

"One problem is that it's a two-hour course which sends a signal to students that it is not as important as three or four-hour courses. Secondly, it is often taken in the last semester of the students last year of law school, a time when job seeking is at its peak and when the interest level is lowest."

"It is a course which is intellectually less difficult than other courses."

"I give an objective test, partly for my own survival and sanity. The examination is really a testing on their reading of the [the rules]. I do it in part because I have to have the grades in for graduation. You take all these factors together and you have the seeds of a course that cannot succeed to the same extent as other courses I teach."

These concerns are, of course, further compounded in law schools in which legal ethics is taught as a one-hour course.

i.

You start out with a one-hour course and the students have the attitude, "This is something I have to take in order to graduate." And you are talking about something where people think the priority is a course about how not to lose your license. Professional ethics certainly involves the Code and the Rules. But when you start with a one-hour course deciding what to do becomes difficult. One of the things I guess I've moved away from quite a bit is ethics.

ii.

I guess I have tended to move pretty far away from anything that can be called professional ethics as opposed to the rules. There are lots of rules and you can just begin to cover what's reasonably certain and clear within a one-hour course.

In the two and three-hour courses, I have a very different emphasis. I want to teach people something about the profession they're going to enter. Isn't it strange that we turn out people who know virtually nothing about the history of their profession, how it grew, its glorious moments, and some of the awful ones, and different aspects of the profession? I seek to get across to people some notion of how the profession works, how it is structured, and how ethical problems come up in different kinds of practice.

The constraint (in what I do in the course) comes from the fact that it is one hour and lots of students are planning to work for big law firms or for the DA where they will receive supervision and help. On the other hand lots of students aren't going to have that and these are rules that are the bottom line; they are binding rules. There are a lot of rules that don't have any business in the Code, but there are a bunch of things in the Code that can get people in trouble very quickly.

iii.

One of the things that has impressed me is that a lot of the violations of the rules are unintentional. I mean there are people who steal from their clients, but I don't know that I can do a lot about that sort of thing. But a lot of what the Code gets at are things that people might not know about. One of the things I learned from teaching Contracts is that you get students, let's say English or biology majors, who have no idea what a business is. For example they might say, "Gee, let me open a bank account and keep all my money and everything in it together, and I'll hire an accountant to keep good records to keep the clients' money separate from mine in one account instead of two." Well, that's not allowed, and when you think about it, it's probably a rather good idea. That's the kind of rule that perfectly decent and honest people could violate without knowing about it. Especially people who don't know much about business.

I have taught a variant of the legal ethics course, something like professional responsibility for solo and small firm practice. I told students the first day of class that practicing law by yourself is significantly different. It is more like running a mom and pop grocery store, than practicing law with the Justice Department or Baker and McKenzie. Professional responsibility in this situation is really business practice: not mingling funds, proper fee arrangements, getting the fee arrangements in writing, bringing in a second lawyer as expert on a case and sharing the money with him and the problem of informing the client of this, separating out money that's going for your fee from money that's going for expenses, taking care of the money that comes in when you win, can you take the fee out of the award ... you know, sort of bread and butter kind of issues, you know, sorting your way through the Thou Shalls and Thou Shalt Nots, and some notion of what they are and what they aren't.

This colleague goes on to more fully describe the need for different approaches in legal ethics courses depending on the kind of practice the student is likely to enter. Those who go with law firms and government agencies need a different "ethics," he argues, than those who "have to know how to hit the ground running." For the latter,

I would teach law office management skills and how to run a small business. That's something they need and I would still deal with the hard issues like conflicts of interest. For those who don't have to hit the ground running, we have a lot more time to deal with more philosophical issues and more what you might call ethical issues.

As the conversation unfolds we see how instrumental and practicalist sentiments are conjoined with the idea of ethics as rule-following. We also learn that the legalistic perspective has an elitist bent. In limited circumstances, some students entering the profession get a philosophical basis for considering issues of legal ethics while others are taught minimalist, legalistic, survivalist ethics.

Before we move on to consider other approaches, it is interesting to note that even this colleague is not insensitive to broader perspectives. He finds it difficult to simply teach the rules.

In some instances I can't resist criticizing the rules when they are absurd. I'd try to make a reasonable effort to let everyone know what I think on the one hand and what the rule is on the other. If the rule is clearly established I might say, "This really is the rule. I think it's stupid...but do understand it is the rule." And finally, in those circumstances where the student doesn't have to "hit the ground running" there is even time for philosophical issues and what you might call ethical issues.

Another teacher expresses concern for unintentional professional misconduct and gives voice to the elitism implicit in his colleagues view.

i.

I don't think you could teach a lawyer not to steal. You can't legislate morals in that respect but there are a lot of lawyers, particularly young ones, that are getting in trouble because they weren't familiar with some of the basic rules. You know, what is a trust account? What's permissible in terms of advertising and soliciting?

ii.

Maybe from the teaching viewpoint we should identify those students that do want to get a better understanding of what the practice of law is like, other than merely looking at the bottom standards and those students ought to have access to smaller seminars, something above and beyond the bare minimal course. We want to be sure and teach enough of the minimum to at least enable the student to get a good whack at the bar. You've got to pursue some kind of a minimum curriculum to teach them the norms of acceptable behavior and the consequences of falling below that level.

The idea that moral and philosophical discourse is a luxury and must give way to legalistic thinking is reflected dramatically in the following comments:

I find that in teaching Professional Responsibility that students, on the whole, have very little foundation in what the standards are in the practice of law, what professional standards are. It's very easy to mix morality with professional rules. I explain to the students the first day that this is not a course in morals, that its a course in standards, in professional standards, standards that they must maintain, albeit the minimum standards, but they are the standards. And I feel very strongly that that's the very least we can do. Now, we certainly must try to do more, but what I try to do in my course is to cover those standards, and in addition, give them a bit of the historical development leading up to the establishment of the present rules, as well as keeping them abreast of the current trends and current changes that are underway, for example, the Kutak Commission.

* * * *

In my course, I concentrate on teaching them the rules, the basic minimal rules that they must attain and that they must hold to, and as far as philosophy is concerned, of course, its difficult to keep philosophy from wandering into the course. But I try to hit it straight on and give them the rules and discuss the rules with them, give them the historical development of the rule, give them some problems associated with the grouping of the rules and try to get the student to understand that he must, he must follow those rules, and that not only must he follow them, but he must make certain that the other lawyers do. In other words, we are self-reporters.

It is very difficult for the student to understand that we are self-regulating, and that in order to preserve the viability of the regulations, we must be our own police, we must be our own investigators. It's difficult for them to accept that. Some students resent the idea of reporting on a fellow attorney, and this is one of the areas that I stress, that this is a very important part of regulating the profession, and that they must be enforced. I bring in a local attorney to talk to them, and invariably I will find that the local attorney will give them at least one example of where he's had to put a fellow attorney on report, and this makes it a little easier for them to accept the fact that they are expected to do the same.

* * * *

I approach the teaching of Professional Responsibility more as a trade school type of course. We're attempting to teach them the basic rules, and we give them those rules directly, and we do approach the course in a way to prepare them to take the examination. Normally, we don't approach other law courses in this fashion. But we do in Professional Responsibility. I think students appreciate it. I would abhor the thought that one of our students would flunk the professional responsibility portion of the bar examination. It frightens me to think that could happen. I'd like to think that the student is not only learning the rules and being aware of the rules but is also able to analyze and be able to answer questions concerning those rules.

* * * *

There is resistance to the rules the first several weeks of class and then I see a gradual change where the students start grabbing onto the rules as some salvation and realizing that these rules are a basis which they can follow. It gives them some guidelines, it helps them.

There really is no answer. What I do is I bring into play the rule that's applicable to the problem and explain the rule to them and try to show them that there is a rule that applies to that area. Of course, in the ideal problem situation, the rule is not available, but, you know, it's a matter of the factual situation and how those facts are developed. But there's no right or wrong answer for any of the problems that I give. They're given primarily for discussion and to cover the broad area of that particular subject.

As the conversation continues I press the contradiction I hear in saying there are no answers and yet there are rules to apply. In response I am told:

Students are confused in those areas (i.e. where there are no answers). Those are the areas where the individuality pops out and where you will have some very strong feelings, that there should be more direction in that area. But not always. I find that generally I'll have students on both sides of that issue, students who appreciate the fact that the area is not clearly defined versus the student who feels that, you know, that there should be more clearly defined rules.

The professor has the opportunity of witnessing the development of a mind, the development of the individual as to what the ultimate goal is as far as his life is concerned. It's very fascinating. I appreciate that very much. I enjoy that part of it.

* * * *

The first few weeks they fight the rules, and it takes them several weeks to start accepting those rules. The bottom line is that they're taking the course for two reasons: (1) to know what the standards are, but (2) to pass an examination. And I think that's unfortunate, and that's where we could make some changes. Perhaps we should teach them a course on the rules and limit it to that so that they will be prepared to take the bar examination but, then, really get into the philosophy of professionalism and what is demanded of us and what our society needs. That would be an entirely separate course. I don't know of any school that's doing that.

* * * *

We don't have time to raise issues about the social problems in regards to our profession in a two hour professional responsibility course. We just don't do that. I cover those rules. I give them the Kutak recommendations and compare them with the present rules to show some of the changes and how we are progressing but we really don't get into it, we really don't discuss them. We don't philosophize about them, which is, I think, unfortunate.

The bottom line for this colleague, and I assume for many legal ethics teachers, is that when ethics and legal aspects of professionalism compete for attention, ethics loses.

Some teachers are explicit about the competition but rationalize their legalistic approach on pragmatic and instrumental grounds.

I have two different and to some extent contradictory purposes in teaching Professional Responsibility. The first one is to prepare students to pass the multi-state ethics examination. The second one is to start them thinking about some moral and legal questions that may arise in their law practice. I try to do both of these things at the same time, largely unsuccessfully. We [the course is taught conjointly with another instructor] compromise our ability to teach the rules, and we compromise our time to raise moral and ethical issues.

The goals are contradictory in the sense that the multi-state examination (being a multiple choice examination) is structured in a way that requires a command of a lot of nit-picking details that a lawyer would ordinarily not carry around in his or her mind, but would use a book for. On the other hand, a thorough knowledge of the rules is probably the best way to avoid most of the hard legal and moral questions that might otherwise arise. So the two aren't necessarily inconsistent.

For the following colleague, the rationalization of legalism carries a luke-warm reformist bent as ethics is used to raise questions about the adversary system.

I suppose what I am trying to do is a combination of trying to get students to be thinking about some of the pervasive issues that confront the profession in the delivery of legal services, the relationship of a lawyer to a corporate client, and other sensitive problems, and at the same time I try to get them to at least understand and to know what body of law may be out there in the professional responsibility area. I don't suggest that what I am seeking to do is in any way original, but I suppose that's really what my objectives would be. My objectives in the course are probably different from objectives in other courses, for example, a first-year course in criminal law where I teach case analysis and how to reason from facts, and how one case differs from another, and the idea of synthesizing cases. One of the problems with the course is that the substantive body of law that you are teaching doesn't challenge the students as a body of law. Therefore, students find it simple compared to the intricacies of the TH Amendment, or the Internal Revenue Code. They take these things a lot more seriously.

I am really exposing students to questions about the adversary system, the role a lawyer plays in that system,and how the system ought to be structured as opposed to taking the system as a given as in other courses.

Legalism has many disguises; some legal ethics teachers recognize their legalistic perspective and others do not. Some have the most unsophisticated rationalizations for teaching as they do, others offer elaborate philosophical reasons. Some legal ethics teachers, entangled in the contradictions built-in to the teaching of ethics, present the most confused and contradictory messages as to the purpose of the legal ethics course.

What follows is, I think, an example of this pedagogical confusion, a teacher who is both legalistic and tries to convince his students that the ethical rules are worthless.

I use the rules approach. In fact I avoid, unless I am cornered, getting into ethical or moral kinds of issues. I raise these issues, but I always leave them dangling. I do not discuss ethics at all. I try to cut it off if a student gets very far into it.

* * * *

I view my mission to teach the rules and to provide professional commentary on them, raising the dilemmas and dropping them in a student's lap, letting each one of them make up his own mind. To be more specific, I start the semester with a session or two on the subject of professionalism in a sociological sense. I try to open their eyes to that and have them help me list the various hallmarks of professionalism. At this time, you understand, they are perfectly naive. They have never thought about lawyering with clients; they have never gotten beyond thinking about legal doctrine so its real easy to have them sort of naively list the hallmarks of professionalism. I get them to say yes, I am going to be a professional, and I am so proud, and that kind of stuff. We reach a consensus in class on the characteristics of professionalism and we kind of wave the flag about it. Now, that sets them up. And I do that on purpose. This method I am sure is not so unique. The next thing I do is introduce the adversary system.

* * * *

And now I begin to clamp the vise just a little bit. Who has been a clerk in here? And I make them tell me a war story, and if they can't I will find a student who has been in the clinic. Without even realizing what they are doing, they admit that the adversary system is unjust in many ways, that its a hide-the-ball systems that its a system that rewards power, that its a system that rewards intelligence and maybe that's a good thing unless you got a dumb lawyer.

Every time I see a look on their faces as if well, I've gone crazy, I make someone tell another war story. And people sort of shuffle their feet and get a little uncomfortable.

* * * *

I spend the bulk of the course demonstrating that the Code is a giant piece of shit. What we learn in my course is that the Code doesn't contain a damn thing, or very little, and most of what's in there, if it gets towards professionalism, is weak. The strong parts of the Code are hypocritical and the balance of the semester is chapter and verse, DR after DR, exploring professional attitudes, many of which are anti-adversarial in nature. I leave it up to them whether or not they like the adversary system, but I make them admit the dysfunctional parts of it. And if they still like it, that's okay. That's what I mean about trying to avoid the ethics part. I don't even allow much discussion of it. Once I sense that they understand the dilemma in some part of the adversary system or some DR, then I stop and move to another issue.

Oh yeah, I rub their nose in it.

I don't allow any discussion of what might be called true moral dilemmas. I force them to realize that they are there, and then I quit. Why don't I allow any discussion of it? To tell you the truth, I think it makes me uncomfortable. I don't know how to say to a student I don't even know how to lead the discussion without somehow commenting on how I feel. I don't mind commenting on how I feel in class if they ask directly, how do you feel about that. I will tell them in no uncertain terms. But the problem is, as you well know, that I am more powerful than they are. And I am struck at how naive my students are, incredibly naive, both morally and in terms of insights into the lawyering art. It alarms me, and it scares me to think that in their naivete they might adopt my viewpoint just because they don't want to think about it. So what I keep trying to do is make them think about it on their own, and I think I do because I hear them going down the stairs fighting each other about this and that. That's what I try to set up--not let that kind of discussion go on in class. There are so many dilemmas that you can set up, I just keep setting them up, setting them up, and setting them up.

Another thing I am trying to do in class is make them understand that if they are angry about how bad all this is, it could be changed. They don't have to accept it; they can change it. And in the process of doing that I keep setting up how the Code favors the big firm over the little firm.

Now who writes the DR's? Everybody responds, the big firms. Okay. Now, we play that game. If that's the way it is, and it ought to be changed, why hasn't it been changed? Well, its usually either political or it has to do with the dominance of the big firms and the ABA. And I keep saying, now you remember the first day you guys told me this, that, and the other about professionalism, now does this DR favor the client or favor the lawyer. And once they give the answer, I wait a minute and I'm off to another subject. I just leave them sitting there once they say it obviously favors the lawyer; I move. Now if some guy wants to argue with me, that's great. And, you know, that's the best part of the class, but most of the time there isn't too much to argue about. Over the semesters I've gotten this down to a fine art.

* * * *

When we are talking about the bar ethics committee, I bring somebody from the grievance committee and kind of play Johnny Carson. And again, I've got that down to a fine art where I set them up; I don't let the speaker sit there and give me a lot of bull shit. I cross-examine the hell out of them. I make them confess that if they get a complaint involving a lack of communication, they call that an informal complaint, and they use a form letter; they never even see the client. But if a lawyer fails to communicate with the grievance committee, that's a grievance. That's a violation of the DR's. I make them admit that. I make them admit this sort of implicit foolishness of private reprimands. We talk about the statistics, we talk about what they enforce and what they don't enforce and why. I ask them to give me the name of any lawyer in a firm of over 25 who has ever been disciplined in their knowledge. I just pin them to the wall. This reinforces what I've been saying because now the class is hearing it from a lawyer, I mean, this guy is real. This is a real lawyer, and he's saying the same thing that I do.

I hope they finish the course angry about the Code, and they want to do something about it. Or if they are not going to do something about it, at least, they have to admit to themselves: I like it because it makes me money. We talk about money. We talk about fees. We always keep coming back to this. If I see the class moving a little too much one way or another, I'll say well, how do you expect to pay these bills? Do you have any idea what overhead is? So I try to move back and forth a little bit if I see they are all going in one line.

* * * *

The class gets a little old for them and for me, once you set it up the way I do, it's just a matter of taking each DR and pointing out the problems and moving on. Another feedback I get is that the class becomes polarized between those who feel that the legal profession is bunking the public and deserves all the criticism it gets and those who feel like, my God, I spent 3 years and no telling how much money to enter this honored profession, and this man is telling me all this negative stuff. Some of them, a whole lot, resent it. I have wondered what other way I might do it. I think the price that I pay for talking only about the DR's and this more objective approach is boredom. I don't think the students ought to leave the course being satisfied with the Code. I am committed to the notion that the Code has got to be changed or at least if not changed, the lawyers are going to have to admit the truth and not continue to hide under this sort of veil.

The comments of colleagues presented here reflect the fundamental, legalistic, instrumental, practicalist perspective that pervades and limits the teaching of contemporary legal ethics and professional responsibility. We have allowed legal ethics to fall under the influence of legalistic and instrumental thinking that undermines the study of lawyer ethics as ethics rather than as the law of lawyering.

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