Professional
Responsibility
Occasional Notes
I enjoyed our first class,
and have some small hope it may have helped launch a semester of worthwhile
work and discussion. I trust you will, as you find it necessary, disabuse
me of fanciful notions I may hold about the course and the value of what
we do. (A critique of what we are doing and how we go about is always
welcome. The mark of a professional, in law and beyond, is that they try
to get things right (even when that sense of right is disputed, contested,
and yes . . . even subjective).
We began our discussion today 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. As I suggested in class, I think we over estimate the subjectivity of morals, just as we over estimate the objectivity of ethics (as least in the form of professional ethics). Are morals and ethics subjective? Of course they are. Are morals and ethics objective? Of course they are, otherwise we could do no more than assume that each of us lives on his/her own moral island, communicating about morals and ethics with each other by placing messages in a bottle and through them out to sea.
In occasional notes following a class, I may have occasion to comment further on issues raised in class:
Defining Terms Like Morals & Ethics: The
Place of Definitions in Philosophy
Doing Philosophy: You may have decided, even from this first day, that
we mean to take seriously the idea that "ethics" (as in legal
ethics)(the Professional Responsibility course is often called "legal
ethics") requires that that talk differently (at times) than we do
when we are engaged in law talk. As I said in class, we'll actually try
to do both, in this course. You may, at this point be more concerning
about the idea of Professional Responsibility being a philosophy course
than it being a law course. Thus: A Note on
Doing Philosophy
Socrates: Socrates is the patron-saint of legal education and I had occasion
to make use of his name during our first class meeting. If you want to
know more (but not too much more) about Socrates and why the Socratic
method (has been so long celebrated), see my essay: Socrates
and the Socratic Method
The discussion about the real estate
problem with Mr. Dillon proceeded rather well (and I appreciate his willingness
to deal with a great barrage of questions and deal with them so well on
this second day of class). I'm confident that some significant number
of you may have had rather different views about whether a lawyer should
represent the real estate developer and we will be hearing and exploring
those views in the days ahead.
At the end of the class, we begin to explore the idea that it is a lawyer's job to represent clients and to do so with engaging in the kind of inquiry (one might call it ethics talk, or moral discourse) that we undertook in class. There are various philosophical stances which a lawyer can take which seem to justify an approach to the real estate developer which says, in effect, "all this talk about morals and ethics is unnecessary." The first problem with this stance is that it begins with a conclusion--this ethics talk just isn't necessary. We might, however, begin with a question rather than a conclusion: Is this kind of talk (that is, the kind of conversation in which Mr. Dillon and I were engaged) of any value or not? I don't know how we can make that determination without engaging in the conversation and then taking up some questions: 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 (as do Freedman and Smith in Understanding a Lawyers' Ethics) that no lawyer (that any of us know anything about) 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 in this particular case 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 (off the job) by still another. There are 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 that 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).
Two Lectures by Professor Alvin Esau,
University of Manitoba
Conscientious Objection in the Practice of Law
Professional
Ethics & Personal Ethics
Murray Fraser Lecture on Professional Responsibility,
Faculty of Law, University of Victoria on March 1, 1989
A Philosophical Approach to Teaching Lawyer Ethics
"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]
Critical Thinking. In a lawyer ethics course, you'll be asked to
do some critical thinking. But do that, you may first need to assess what
you know (and need to know) about critical thinking.
The Critical Thinking Movement: Alternating Currents in One Teacher's Thinking
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).
Query #1: What set of values, ideas, and assumptions do you see your teacher standing for? And in standing for these values what gets excluded?
Query #2: 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)]
Our
recent class discussion have reminded me of Walker Percy's now rather
famous essay, "Man On the Train" which appeared in his book
of philosophical essays, The Message in the Bottle (1975). But
it was still another essay, "The Message in the Bottle," where
Percy comment on commuters caught my eye. Here is a passage that I've
always found rather insightful:
Two men are riding a commuter train. One is, as the expression goes, fat, dumb, and happy. Though he lives the most meaningless sort of life, a trivial routine of meals, work, gossip, television, and sleep, he nevertheless feels quite content with himself and is at home in the world. The other commuter, who lives the same kind of life, feels quite lost to himself. He knows that something is dreadfully wrong. More than that, he is in anxiety; he suffers acutely, yet he does not know why. What is wrong? Does he not have all the goods of life?
If now a stranger approaches the first commuter, takes him aside, and says to him earnestly, 'My friend, I know your predicament; come with me; I have news of the utmost importance for you--then the commuter will reject the communication out of hand. For he is in no predicament, or if he is, he does not know it, and so the communication strikes him as nonsense.
The second commuter might every well heed the stranger's "Come!" At least he will take it seriously. Indeed it may well be that he has been waiting all his life to hear this "Come!"
The canon of acceptance by which one rejects and the other heeds the "Come!" is its relevance to his predicament. The man who is dying of thirst will not heed news of diamonds. The man at home, the satisfied man, he who does not feel himself to be in a predicament, will not heed good news. The objective-minded man, he who stands outside and over against the world as its knower, will not heed news of any kind, good or bad--in so far as he remains objective-minded. The castaway will heed news relevant to his predicament.[Walker Percy, The Message in the Bottle: How Queer Man Is, How Queer Language Is, and What One Has to Do with the Other 134 (New York: Farrar, Straus and Giroux, 1975)]
Anti-lawyer
sentiment: The current President, the son of Bush I (whose comment
on trial lawyers featured in our exploration of the excerpt from Diary
of a Yuppie--still another George Bush--continues the Bush family
tradition of anti-lawyer sentiment. President Bush (Bush II) in his State
of the Union address on January 28, 2003 argues that lawyers stand in
the way of "high quality, affordable health care for all Americans."
President Bush claims to be working "toward a system in which all
Americans have a good insurance policy and choose their own doctors and
seniors and low-income Americans receive the help they need. Instead of
bureaucrats, and trial lawyers, and HMOs, we must put doctors, and nurses,
and patients back in charge of American medicine." Bush went on to
say that "[t]o improve our health care system, we must address one
of the prime causes of higher costs, the constant threat that physicians
and hospitals will be unfairly sued. Because of excessive litigation,
everybody pays more for health care and many parts of America are losing
fine doctors. No one has ever been healed by a frivolous lawsuit and I
urge the Congress to pass medical liability reform." ["President's
State of the Union Message to Congress and the Nation" (text as provided
by the White House), New York Times, January 29, 2003, p. A12, c.1]
One might hope for, if not expect, a more nuanced view from the President of the United States of the role of personal injury lawyers and their efforts on behalf of those who have suffered grave harm while in the care of physicians and hospitals. There is much talk about frivolous lawsuits and "excessive litigation"; virtually no talk about the thousands of lawsuits filed by individuals who have been injured unnecessarily, injured by the proven negligence of those entrusted to care for them. The President may be right in his claim that "[n]o one has ever been healed by a frivolous lawsuit," he simply fails to mention or account for the thousands who have been healed, as best they can be healed after-the-fact, by their non-frivolous law suits.
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. [For a more philosophical
perspective, see: Questions]
"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
Confessions of a Criminal Lawyer
Interlude:
Thinking About How Ethics Works
The Lawyer As Professional: The Moral Responsibility of Lawyers
Judge Thomas M. Reavley, Circuit Judge, 5th Circuit, United States Court of Appeals
"[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).
