[A version of the essay was published in 36 J. Legal Educ. 274-283 (1986). In the essay, I review Thomas Shaffer, American Legal Ethics: Text, Readings, and Discussion Topics (New York: Matthew Bender, 1985)]

If legal ethics is to be viewed as ethics, in contrast to the law of lawyering, we must engage students conversation about the moral dimension of lawyering. In today's legal ethics and professional responsibility courses, ethics gets lost. Legal ethics courses today encourage a view of professional morality that justifies the assumption that our ethics as lawyers is separate and apart from ordinary morality.

Legal ethics teachers know that something is wrong with their course, that students hold legal ethics in disdain and have less respect for legal ethics as a subject than they do for other courses in the curriculum. [See Ronald Pipkin, Law School Instruction in Professional Responsibility: A Curricular Paradox, 1979 Am.B.Found.Research J. 247)]. Tom Shaffer attributes the problem to our addiction to ethical "quandaries" and the lack of "intellectual rigor" in legal ethics courses.

My own study of legal ethics teaching and extensive conversations with law school ethics, teachers,observations of their teaching confirm Shaffer's suspicions. The legal ethics teaching I observed found most teachers working with ethical rules and they tended, as Shaffer has noted, "to equate one's morals with one's taste in beer." (xxviii). They indeed made, "a fetish of tolerance" trying to promote discussion and avoid the dilemma of suggesting to students that they, the teacher, might have a sense of right and wrong. When moral arguments were presented by students, they (the argument and the student) tended to remain unchallenged, unanalyzed. The only response to a student's arguments were views of yet another student, or references to ethical rules. As Shaffer puts it: "We do not evaluate the moral arguments we make to one another." (xxviii). I found both teacher and students manifestly uncomfortable with trying to establish an ethical stance, or willing to engage each other in moral dialogue. Consequently, the legal ethics class I attended were fake law classes and lacked intellectual rigor.

Many of us share Shaffer's doubts about traditional legal ethics courses and know, at some level, that more is possible, and that while the teaching of ethics is difficult, it is not beyond our means to make legal ethics an interesting, even commanding subject. The very move for Shaffer is the turn to the stories of lawyers. "Stories display morals more than announce them. They involve quandaries, but they put quandaries in a narrative, human context. The context cuts the quandary down to size. A story helps give the quandary an appropriate amount of weight, that is, the weight it has in life." (xxix.)

In American Legal Ethics Shaffer tries to honor traditional legal ethics teaching but Shaffer's real contribution is to put ethics back into the legal ethics course. He does this by introducing the moral and ethical life of the lawyer by way of stories. Shaffer's focus on stories, on stories as a way to get to ethics, is part of a broader movement in legal and humanistic scholarship known as narrative jurisprudence. [See e.g., Gerald Lopez, Lay Lawyering, 32 UCLA L.Rev.1 (1985); Robin West, Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory, 60 NYUL.Rev.145 (1985); Robert Cover, Nomos and Narrative, 97 Harv.L.Rev.4 (1983); Robert Burt, Constitutional Law and the Teaching of Parables, 93 Yale L.J.455 (1984)]

Let me give a short example, a story that came my way while writing this review. The client owns a small print shop that keeps prices low by hiring motivated high school kids and offering a training program in conjunction with the local high school. The program is innovative and helps out the kids. The problem is that the client is now involved in a dispute with one of the kids who had helped manage the cash register and take customer's orders. The client fired the student because he thought he was taking money from the cash register. The student has now threaten to file a complaint with the state Wage and Hours Division of the Department of Revenue claiming that he was paid overtime wages in cash unless the print shop owner pays him two months severance pay. There was, of course, no mention of severance pay in the verbal agreement of the print shop owner and the student. The student was not given a contract of employment.

The client has a legal problem, a problem that a lawyer may help resolve. When lawyers work for clients they tend to think of themselves as problem solvers. The client has a problem and the lawyer knows how to solve it (or knows who can), or knows that it isn't the kind of problem that lawyers try to solve. This view of what (some) lawyers do is descriptive and for the most part accurate. Lawyers do work with certain kinds of problems and not others, seeking particular kinds of resolutions, in particular kinds of places (courts, governmental agencies) but the description breaks down if you push it very far. The traditional image of the lawyer in court, or the lawyer drawing up a legal document, or even the lawyering talking to an individual client is not totally descriptive or accurate. It breaks down because some lawyers represent entities and not persons, doing things like planning and lobbying which aren't in the traditional job description. The variety of the kinds of things that lawyers do is simply too broad to say, simply, lawyers are problem-solvers.

In legal education this image of the lawyer as technician is given credibility and at the same time systematically opposed. Becoming a lawyer is not so simple as learning rules and applying them, and virtually every law student knows this to be true. There is something more going on in learning law and becoming a lawyer, and there is something more going on in the work that lawyers do with clients. The image of the law as technician is one image, one kind of truth about the work that lawyers do, and the danger is that it overwhelms other possible images. Shaffer's American Legal Ethics is an exercise in keeping alive those images which compete with the misshapen ideal of the lawyer as technician.

But the client also has a story to tell. It is a story about success (the print shop) is doing well; the American dream (the client wants to get the legal matter cleared up so that he can take his wife to Europe, both for their first time); short-cuts (everybody in this business does this sort of thing); and betrayal (putting trust in employees and having it disappointed). The print shop owner can be reduced to his problem and become the name on a case file, or he can be seen as bringing with him a story, one he now enacts so as to include you, his lawyer.

Tom Shaffer has convinced many of us that our students learn as much from reading To Kill a Mockingbird and talking about Atticus Finch the lawyer hero of that story, as they do discussing the resolution of a bare bones legal ethics dilemma. Shaffer's stories in American Legal Ethics include a look at the problem of truth and moral integrity in the rural south in the 1930's in the story of Atticus Finch in Harper Lee's To Kill a Mockingbird; an introduction to "gentleman ethics" and the historical foundation of an ethics of virtue in the essays of David Hoffman (1784-1854), "the father of American legal ethics"; the problem of professional and ordinary morality (what Shaffer calls "the two kingdoms" problem) in the life of Louis Brandeis; the ethics of the law firm depicted in Louis Auchincloss's novel The Great World and Timothy Colt; the ethics of those who stand outside the mainstream, an ethics of the malcontent, and the alienated, those who oppose establishment ethics as did Ephraim Tutt's Arthur Train, and as we see in the biography of Frances Holtzmann. In addition to these stories, there are brief vignettes and fragments on hundreds of topics which Shaffer uses to introduce various ethical points raised in the principle stories (and as an excuse to point to a body of literature on or about lawyers that one might want to read). In lawyer stories we discover that lawyers have morals (or what might be called an ethical world-view) before they get into trouble or confront an ethical quandary. Their morals come before their problems, and we understand their problem in light of the morals that give rise to it. As Shaffer puts it: "Morals may solve quandaries but, before that, they create quandaries." [xxvii]

For Shaffer the study of legal ethics, is not simply an effort to teach law students moral philosophy and ethical theory, an approach found in some medical ethics courses. Shaffer has avoided the temptation to simply apply moral philosophy to problems in the legal profession. Ethics, in Shaffer's view, is to be derived not only from philosophy, but from a study of literature (stories), psychology, theology, and history. If the aim of ethics is to locate and examine the roots of moral sensibility in the practice of a professional craft then it must take as a perspective those disciplines and concerns, those ways of seeing and experiencing the world that help a professional see what to do, but more importantly how to live. If legal ethics is to be a study of the lawyer as person, person as lawyer, it cannot be confined to moral philosophy. "[W]e will do well not to let it [the course in legal ethics] get narrow on us." [xxiii]

Shaffer, is aware that lawyers have, and are, viewed as occupying a special role in American society. It is this "special role" that gives rise to the study of lawyers as professionals (by sociologists, moral philosophers, and law teachers). Shaffer follows a different approach. Lawyers are special, in Shaffer's view, because they claim "that being a lawyer is a way to become a good person." Lawyers have a need to see themselves as doing something worthwhile, as having attained a position in society that deserves respect. This claim to "goodness," assumed rather than questioned in the legalistic orientation to ethics, is questioned by moral philosophers, and by Shaffer in American Legal Ethics. The danger is that our claims to "goodness" as lawyers, and as persons, double as rationalizations. If we are to avoid the entanglements of self deception we will need a critical perspective. The critical perspective always "beyond" where we presently find ourselves asks much,makes us defensive, is easily tagged as utopian.

Tradition, as the notorious example of legal slavery graphically demonstrates, can be profoundly immoral. Following tradition, and doing what others do, may no longer be enough to avoid moral failure. And so we struggle with stories in which traditions sustain us and give us an identity and root us in communities and stories in which traditions lead us astray. While there is a need to view ethical problems in the context of normative conventions of like-minded practitioners, there is a danger that this sociological conception of professional ethics undermines the very notion of ethics. The conflation of professional ethos and ethics leads to moral failure.

American Legal Ethics is one of the first legal ethics text books to take seriously the notion that legal ethics must be taught as ethics if it is to have any claim to be ethics. Shaffer pushes us to see the philosophy in ethics, and the ethics in our philosophies. American Legal Ethics exposes the reader (student and teacher) to the existential questions which loom ever present in the life of who is concerned about being a good person and a professional. Many readers will find the going difficult, some will ultimately lose their way. My guess is that Tom Shaffer would have written a simple, easy, popular book if it had been possible. It may be possible to write such a book, but when and if it is done, we will have learned much from the eclectic, philosophical, historical, and theological materials Shaffer presents us in American Legal Ethics.

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