Professional Responsibility

A Note on Teaching Professional Responsibility

New Year's Day Thoughts on the Course
We Call Professional Responsibility

 I'm not at all sure that there is anything that might be said or done now, in beginning, that will clear the path ahead of obstacles. Each of us must wrestle (in our own way and in a way that has meaning for others) with the hard questions concerning our professional responsibility as lawyers.

For some, the best place to begin might be to define some basic terms: professionalism, ethics, morals (and the kind of character, choice, responsibility, wisdom we associate with a moral person). We will, I'm confident, have occasion to talk carefully and specifically about some of these terms, and you may be asked to write about them during the course. Since my own philosophical predispositions are more Socratic than analytic, more phenomenological than postivistic (again, more terms that deserve attention), I'll forgo the temptation--and I confess it is a rather weak one--to begin these notes with a set of definitions. Definitions, as I see their importance for this course, lie in the way you will come (in your own way and with the help of those who will be involved in the discussion) to see words like ethics, morals, and professionalism as problematic in the life of a lawyer. You are no more likely to be open to my telling you what you mean by ethics, than you would be my telling you what kind of law to practice and how to practice it. If there is anything we are to guard zealously, if to a fault, it is this notion that we each will make up our own minds about what it means to be ethical. While I may think this notion of a self, standing alone, like a hermit living in the woods, overstates all too dramatically how independent your ethics has been and will be, I understand the notion that we don't like ethics pushed on us, even if it happens to be lawyer ethics.

There are two ways to work on problematic words (ethics, morals, professionalism, character): we could define the words and try to carry on a conversation using the terms as we have defined them, or we can begin the conversation using the problematic words (knowing they are, in a sense, weight-bearing words) with the idea that we will learn the words, their nature and use, their rhetorical context and their significance in our own lives as we go along. Instead of conducting the conversation--that is, the course--in accordance with a predetermined set of definitional rules, we can talk about lawyer ethics and see what happens as we talk. When you talk with smart people about important things its hard not to learn something worthwhile. (I assume that the course will have more than an ample number of smart people who will involve themselves in the conversation. I would like to think that I might be included as one of the "smart" ones, as a real conversationalist (which means a good listener and a good talker). You must of course be the ultimate judge of just how smart you find the conversation (how much you can actually learn from it), and how smart you find my efforts to make it--the course--happen (so that we can all learn something along the way, perhaps even, learn some things that might surprise us).

 If you find yourself confused, bored, upset, anxious, lost, mystified all you have to do is turn to your neighbor and ask: what is going on here? Since I consider myself a neighbor that means you can ask this question of me: in class (at any time), out of class (before or after; or anytime you can find me). Again, the question is simple, straightforward, and always in-play: what is going on here? (what am I supposed to be learning?) (where is the value to be found in what I'm being asked to talk about? to write? to think about) (why am I so resistant to the idea that this is thought to be of such great importance?) Indeed, what is going on here?

 In the course biography, I have suggested that we might think about a legal ethics, or professional responsibility course, as terrain which sets atop a major fault-line. There are different ways of describing, thinking about, and exploring that fault-line, and indeed one might even imagine a legal ethics course in which the fault-line were ignored. Most crudely (and all too simplistically) put, the fault-line is between

law      ethics

I begin by noting how crude the line is; it may be so crude as to be meaningless, in which case we will have to come at the problem from a different direction. But, I'm not at all sure that the this idea that law and ethics are divided (at times) by a major fault-line is a meaningless notion. Yes, its true that law represents our ideals and that law has its basis in morality. We pursue law in the quest for justice. And, there can be no doubt that in ethics, one finds rules, and reasoning not unlike the kind of reasoning and interpretation that goes on in law. And justice, and its variant concepts, might well be seen as a major part of a study of ethics. There is little doubt that we can find and argue all manner of similarity between the law enterprise and the enterprise we associate with ethics (and morality). This said, I wonder if there is a single person among us who would attempt to argue that law is not, by definition, design, and usage a different kind of activity, language and practice than is morality. When we talk about law and morality, we assume, do we not, that they will be in conflict so often that they seem to be pulling us (quite literally) in different and opposite directions.

I will be surprised if you do not find, during the course of the semester and our work together, that you are not at times caught up in this law/ethics dichotomy (and that our conversation is caught up in, tangled up by the dichotomy). You may find, for example, that you are on the horns of a classic dilemma, damned if you do and damned if you don't. What to do? The law (that is, the rules of professional conduct) requires you (or urges you in the strongest possible terms) to take one action. Your sense of right and wrong (which you may hold dearly) says that you must act differently. What to do? Or consider this possibility: the law of lawyer ethics doesn't speak to an important matter at all, that is, no rule dictates a particular action, and yet, there are many (both in the legal profession and beyond it) who think it quite clear that to follow one course of action is so clearly wrong that you will be unethical to pursue it, notwithstanding the failure of a mandatory rule applicable to your situation. What to do, when actions and choices, behaviors and strategies, which will not see you sanctioned by the bar, are thoroughly and resoundingly disapproved by considerate, thoughtful people who have reflected on the issue?

And what are we to do when we find ourselves in the presence of those use the law as both shield and sword, allowing them to act as if morals and ethics were of no concern to the lawyer? And, perhaps fewer in number, but we may find moralists who contend that whatever the law may say or demand, one must follow their conscience (and of course, since we are talking about these matters, we cannot know whether such a person can actually live this stance or not). What are we to say to the self-identified moralist, the person who thinks she has, by some means or another, tapped into the one true belief?

This may sound abstract at the moment, remote in possibility, ut I can assure you it will be real enough in a matter of days. I see no way to spare ourselves the fact that law and ethics do not fully inhabit the same universe of thought, feeling, and action. By some predisposition or other, some of us are more legalistic in orientation, some of us more oriented to ethics and ethical thinking. This does not mean--I must surely hope--that a person cannot be legalistic enough to be a lawyer and ethical enough to be a good person.

 Can a good person be a good lawyer? You may find the question, so simply and boldly stated, overly dramatic. Yes, you may want to say, there are ethical problems in the practice of law but they do not (and cannot be allowed to) rise to the level that they threaten you as a person. Or you may simply find the question foolish. With something like a million lawyers in the United States, this cannot be taken as a serious question. Or, if it is to be taken as a serious question, it can be taken up by someone with the time and predisposition to muse about such things; this is not the work of the lawyer.

I suspect that your reaction to the question, that is your skepticism about whether the question makes sense, and your resistance to the notion that it might have anything to do with you and the way you will practice law tells us a great deal about where you fall on the legalistic vs. ethical orientation.

There is no need to begin or end every class discussion with the question--can a good person be a good lawyer?--but its a profound question and you may find that it more accurately than anything else we say or do defines what this "professional responsibility" course is all about.

 A professional responsibility course can be taught as a law course in which the subject of course is the law of lawyering. We have a set of law-like rules--Rules of Professional Conduct--and the various state bars around the U.S. and the courts apply these rules (call them ethical rules if you will, or the rules of professional conduct) in their determinations that lawyers have violated the rules and should be punished for their violations. There is law decided on the basis of these ethical rules/rules of professional conduct and that law can be taught and learned. There is more than enough of this kind of ethics law, or what I call the law of lawyering, to occupying a semester (and more) of study. Indeed, it would be possible to study the law and ethics of conflicts problems, or confidentiality problems, or for that matter, solicitation and advertising problems, or fee problems, and devote a semester to a single area of ethics. Or you might find a course devoted to the ethics of criminal defense lawyers, to prosecutors, or tax lawyers, or real estate lawyers, or ethics and ethical legal problems of lawyers involved in corporate mergers and acquisitions.

By pursuing, rigorously, the legal issues raised by ethical problems, one might well find it possible to fully and completely displace any need to talk about "ethics" by simply talking more about law. If there is a tension, healthy or otherwise, between the law of lawyering and the ethics of lawyering, you can be sure that most law school courses in legal ethics/professional responsibility come down on the law side. In this course, we will attempt (if not achieve) a more judicious balance between ethical rules and ethics, between law talk and moral discourse. [See: Notes on Moral Discourse]

 I taught legal ethics/professional responsibility for fifteen years, gave it up for a decade (at the behest of Deans who wanted the course to be more focused on rules less on ethics). In lieu of legal ethics, I then taught a course I called Practical Moral Philosophy for Lawyers as I wanted to continue thinking and writing about the pedagogy of lawyer ethics and now return to a course that has always been a great fascination for me. I'm pleased to be teaching the course again and look forward to our work together. It feels a bit like coming home.