Professional
Responsibility
Occasional Notes
Getting
Started: We began our discussion with an exploration of the idea of
morals and ethics and how we commonly think of morals as differing in
material respects from ethics. I do not place much stock in the effort
to distinguish the terms, notwithstanding the common perception that they
are indeed, distinct terms. I think we over estimate the subjectivity
of morals and the objectivity of ethics. Are morals and ethics subjective?
Of course they are. Are morals and ethics objective? Of course they are,
otherwise we would be acting as if we lived on our own personal moral
island, and we'd communicate about morals and ethics with each other by
placing messages in a bottle and through them out to sea. 
Defining Terms Like Morals & Ethics: The
Place of Definitions in Philosophy
Doing
Philosophy: I trust that you can see from the first day of class that
in talking about ethics we do something different than when we talk about
law. I'm not at all opposed to the idea that what we do when we talk about
ethics is something akin to philosophy: A Note
on Doing Philosophy
"Verbal interaction, in which ideas can be articulated and examined, questions asked, positions debated, and arguments presented and criticized, is essential both to the activity and discipline of philosophy and to philosophical education." [American Philosophical Association, Statements on the Profession: Teaching Philosophy]
"Disagreement and criticism are among the hallmarks of philosophical life; and it is rare to find two philosophers working in the same area who are in complete agreement with each other. The very best research in philosophy serves more often to generate disputes and differences than to resolve them. It is precisely through such ongoing argument and debate that sophistication with respect to the issues at hand increases, comprehension of them deepens, and understanding concerning them is enhanced." [American Philosophical Association, Statements on the Profession: Research in Philosophy]
The
Real Estate Developer Problem: We began to explore the idea that it
is a lawyer's job to represent clients and to do so without engaging in
the kind of moral discourse that we undertook in class. There are various
philosophical stances that a lawyer can take to justify representtion
of the real estate developer: "All this talk about morals and ethics
is unnecessary." The first problem with this stance is that it begins
with a conclusion: Ethics talk just isn't necessary. We might, however,
begin with a question rather than a conclusion: Is this kind of talk of
any value or not? I don't know how we can make that determination without
engaging in the conversation and then questioning what we have done: Does
this talk help? Do we learn anything we didn't know? Does it help us see
the problem in a different light? Does it allow us to see that that are
holes, gaps, fissures in our thinking when it comes to moral and ethical
matters?
We'll need to do some serious thinking about the argument that a lawyer has a kind of job, the job requires a certain kind of work, and that job-work doesn't entail the kind of moral inquiry we undertook in our discussion on January 16th. The real question here, as I tried to hurriedly suggest in class, is that when you say the lawyer job dictates a stance--for example, represent the clients who seek out your services--then that proposition needs to be questioned. First, we note that no lawyer takes every client who walks in the door. Lawyers expect to be paid for their services, and while there is some expectation in the legal profession that lawyers will engage in some pro bono activities and provide some pro bono services, lawyers will turn out potential clients when they believe or determine that the client has no ability to pay for the services. There are, of course, clients who cannot pay for legal services but are able to acquire lawyers by way of contingent fees, that is, a fee in which the lawyer is paid from the proceeds of a settlement or verdict.
Lawyers may turn away clients for various reasons:
the lawyer may not be competent (or want to try to become competent) to handle certain legal matters (e.g., tax law, estate planning, securities law, patent and copyright law are all specialized areas of practice, so specialized that when a client approaches a lawyer with problems in these areas, the case may be referred to another lawyer) (a lawyer might, e.g., not want to represent the real estate developer because the issue involves a constitutional issue which would be better handled by a lawyer with experience and expertise in dealing with constitutional issues, although one might assume that the issue is one that any thoroughly competent lawyer might be willing to take on);
I suspect, in this idea that a lawyer has a job there is also the notion that we may judge work by one set of ethics and the person who does the work by still another. There has been a good deal of academic and scholarly commentary on the idea of professional morality vs. ordinary morality and I will not attempt to summarize that scholarly literature here. For those who want to pursue this idea, see: Thomas L. Shaffer, Faith and the Professions 71-73, 75, 76, 85, 93, 95-96, 97, 99-100, 108-109 (Provo, Utah: Brigham Young University, 1987); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (Fall, 1975); Monroe H. Freedman, Personal Responsibility in a Professional System, 27 Cath. U. L. Rev. 191, 193-196 (1978)(a response to Wasserstrom); Thomas Huff, The Temptations of Creon: Philosophical Reflections on the Ethics of the Lawyer's Professional Role, 46 Mont. L. Rev. 47 (1985); Alan Goldman, The Moral Foundations of Professional Ethics 1, 2, 6-7, 18, 19, 23 (1980); Michael Schudson, Public, Private, and Professional Lives: The Correspondence of David Duley Field and Samuel Bowles, 21 Amer. J. Leg. History 191 (1977); Robert M. Veatch, Medical Ethics: Professional or Universal, 65 Harv. Theological Rev. 531 (1972); Benjamin Freedman, A Meta-Ethics for Professional Morality, 89 Ethics 1 (1978); Mike W. Martin, Rights and the Meta-Ethics of Professional Morality, 91 Ethics 619 (1978); Alan Goldman, The Moral Foundations of Professional Ethics (1980); Hampshire, "Public and Private Morality," in Stuart Hampshire (ed.), Public and Private Morality 23-53 (New York: Cambridge University Press, 1978); Burnele V. Powell, Lawyer Professionalism as Ordinary Morality, 35 S. Tex L. Rev. 275 (1994); Bruce A. Green, The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. Legal Ethics 19 (1997); Burnele V. Powell, Lawyer Professionalism as Ordinary Morality, 35 S. Tex. L. Rev. 275 (1994).
A Teacher's
Values: "In the broadest sense of the word, teaching is a political
act: some person is choosing, for whatever reasons, to teach a set of
values, ideas, assumptions, and pieces of information, and in so doing,
to omit other values, ideas, assumptions, and pieces of information."
Carol Sanger, Feminism and Disciplinarity: The Curl of the Petals, 27
Loy. L.A. L. Rev. 225, 235 (1993).
What set of values, ideas, and assumptions do you see your teacher standing for? And in standing for these values what gets excluded?
Do the assumptions set forth in the commentary I provided you at the beginning of the semester address the set of values you now see beginning to take firmer shape? [A Teacher's Assumptions]
"Like Jonah . . . we are inside the legal beast. We are both
its slaves and its masters, having learned the professional techniques
to tickle its soft belly from within to make it move in the directions
we select. But ironically, we remain masters only so long as we also remain
slaves. When we are disgorged and adrift--both free and naked of the manipulative
and commanding power of our professional identity--we begin to see and
sense the shape, power, and position of the legal whale and its course
in the great sea of society." [Randy Frances Kandel,
Whither the Legal Whale: Interdisciplinarity and the Socialization of
Professional Identity, 27 Loy. L.A. L. Rev. 9, 9-10 (1993)]
Can Virtue Be Taught? We have, in my view, set out to do something
rather extraordinary in this Professional Responsibility course. We have
undertaken to teach ourselves something about virtue, about how it works,
and how it fails. As you must now have experienced firsthand, teaching
and learning virtue is not without its difficulties. Indeed, there are
many who contend that virtue cannot be taught. And the argument follows
since virtue cannot be taught, any effort to do so much be a great waste
of time. Since I do not share the conventional view that virtue cannot
be taught, you might find the following notes in which I argue for the
teaching of virtue of interest:
Talking
Ethics is a Way of Doing Philosophy. You might want to keep in mind,
as you begin to despair about the twists and turns of our class conversations,
that we are trying to think and talk about lawyer ethics, not just as
lawyers, but as professionals, as citizens, indeed, as philosophers. Talking
about lawyer ethics is a way of doing philosophy. But this way of talking
about the course poses a host of questions: what is philosophy? how is
it done? can one be a lawyer without some interest in philosophy? As you
begin to respond to these questions consider the following:
Our classroom
discussion depends upon questions. It is my questions and yours (I am,
in a real sense, your advocate in the questions I raise), that move our
discussion along, that make it possible for us to explore the moral dimension
of lawyering.
"Is there a conscience unique to a calling, a conscience more than that
of the good man [or good woman] in general?" [Manfred
Stanley, The Educator's Conscience from Paradise to Disneyland, 83 (1)
Teachers Coll. Rec. 73, 74 (1981)]
"The
fact that you never give morality a second thought doesn't mean . .
. that your decisions have no moral import; it simply means that you
are unaware of the moral dimension. The fact that a person cannot spell
or even pronounce the word "philosophy" doesn't mean that he has no
operative philosophy in his life; it simply remains unconscious. [Edward
Stevens, Business Ethics 8 (New York: Paulist Press, 1974)]
The Way
We Talk (and Don't Talk) Lawyer Ethics: An Introduction to Moral Discourse
Dentists,
Bartenders, and Lawyer Unpopularity
Walter K. Olson, a Senior Fellow at
the Manhattan Institute’s Center for Legal Policy
Teaching
Virtue
A Conversation About the Teaching of Ethics
Confessions of a Criminal Lawyer
Interlude:
Thinking About How Ethics Works
"[P]hilosophical
teaching about ethics must convey to students a sense of the urgency and
complexity of ethical problems, making contact with their own questions
about their lives and dramatizing them in a vivid way."
[Martha C. Nussbaum, "No Chance Matter:" Philosophy and Public
Life]
There is
an article by Warren Lehman, The Pursuit of a Client's Interest, 77 Mich.
L. Rev. 1078 (1979) included in the xeroxed packet of material you purchased
for Professional Responsibility. Lehman has some interesting things to
say about lawyers and the way they go about representing their clients.
[See: Lehman Notes]
Regarding my comments
in class on February 25th concerning the relationship of a lawyer's personal
life to his or her professional life, see: Carrie Menkel-Meadow, Private
Lives and Professional Responsibilities? The Relationship of Personal
Morality to Lawyering and Professional Ethics, 21 Pace L. Rev. 365 (2001).
See also, the various comments collected in The
Two Kingdoms Problem
On the
morals and ethics of lawyers portrayed in film and popular fiction, see:
Carrie Menkel-Meadow, Can They Do That? Legal Ethics in Popular Culture:
Of Characters and Acts, 48 UCLA L. Rev. 1305 (2001); Carrie Menkel-Meadow, The Sense and Sensibilities of
Lawyers: Lawyering in Literature, Narratives, Film and Television, and
Ethical Choices Regarding Career and Craft, 31 McGeorge L. Rev. 1 (1999). On lawyers and film more generally, see: James R. Elkins,
Lawyers
and Film, a course website created for students at West Virginia University.
See generally: Anthony Chase, Lawyers and Popular Culture: A Review of
Mass Media Portrayals of American Attorneys, 1986 Am. B. Found. Res. J.
281; William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, 101
Colum. L. Rev. 421 (2001).
