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);

the legal matter presented to the lawyer may involve an issue that will require such extensive involvement that the lawyer fears that the representation of the client would jeopardize her work for other clients (indeed, a lawyer, or law firm might be sufficiently busy that they simply would not be willing to take on new clients);

the lawyer or law firm may have, for whatever reason, decided to limit their practice (e.g., not to represent criminal defendants (unless appointed to do so by the court), not to handle divorce cases, not to take personal injury cases);

the lawyer or law firm may decline to represent someone who has a general reputation in the community of being difficult to work with, and indeed, has a reputation for entanglements and disputations with various lawyers in matters these lawyers have handled for them (I would assume that most lawyers and law firms want to stay as clear of "difficult" clients as they possibility can);

and finally, as we discussed in class, the lawyer may simply find the client or what the client seeks to do so "repugnant" that she does not want to have to deal with the person on a professional basis. (Obviously, criminal defense lawyers must learn to deal with repugnant clients, and they do so not only because it is their "job" but because they represent principle which are constitutionally grounded).

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

Archaeology of Criticism

The Critical Project


Critical Thinking About the Humanities

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)]

A Note About Philosophy

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:

Can Virtue Be Taught?

Teaching Virtue Notes

Taking Account of Skepticism

Interpretation When We Talk Ethics

An Argument Against Reticence in the Effort
to Teach Virtue

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:

Prologue

Beginnings

What Is Philosophy?

Philosophy: No Escape?

Philosophy--A Diagnosis

Confusion

Social Worlds

Changing Our Minds

Judgments

The Good Life

Imagining Yourself as a Philosopher

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)]

"[C]an conscience create values rather than merely imitate them"? [Id. at 74]

"What, then, is it that distinguishes the educator's calling? What is it that divides the practice of education from others with which it is so often confused, like instruction, schooling, socialization, indoctrination?" [Id. at 76]

"What is the nature of the commitment that, to the extent that it is successfully practiced, makes of the educator a necessary accomplice to suffering? To answer this question is to penetrate to the very heart of the educator's conscience." [Id. at 76]

"Educators, of course, do make use of skills, information, and values. But these exist not for their own sake but as resources at the service of a permanently revolutionary conception: the exposure of the student to a 'conversation' among those who risk much of their comfort to question the nature and point of existence itself. Education has to do with conscious and competent personal engagement with ancestors, contemporaries, and descendants in a conversation about time and immortality, about memory and testament; about all that makes us more than mere bearers of skills, information, and dogma." [Id. at 76]

"The origins and forms of conscience are often best discerned in narrative--paradigm stories that illuminate the essence of a social practice." [Id. at 77]

"Education is 'unsafe.' It threatens its recipients with 'homeless' exile beyond the perimeters of established ideologies, theodicies, and other such accounts of how one's own society is what gods or nature have ordained to be the real world among dreams. Education stimulates consciousness to the limits of its boundaries. It exploits the rigors of intellectual discipline for the sake of probing the finitudes of all symbolic technologies. Education makes one aspire to the status of gods, and is therefore an amoral activity, beyond good and evil." [Id. at 83]

"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

Notes on Moral Discourse  

Obstacles to Moral Discourse

Student Perspectives on Obstacles 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

An Argument Against Reticence: Teaching Seymour Wishman's
Confessions of a Criminal Lawyer

Scenes from Legal Ethics Classrooms

How To Think About Ethics

Notes

Socrates and the Socratic Method

Interlude: Thinking About How Ethics Works

Elkins Notes: How Does Ethics Work?

Elkins Notes: To Kill a Mockingbird as a Morally Instructive Text

The Reconstruction of Legal Ethics as Ethics

Making Ethical Decisions

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]

The Good Lawyer

Politics and Lawyer Ethics

Lawyers Talking About Fees

Note: For those of you who have explored the "meditations" on philosophy which I posted on February 5th, I have added an exercise which asks how you might imagine yourself as a philosopher. [See: Imagining Yourself as a Philosopher]

Gaining Recognition [a short essay on Jack London's Martin Eden about a young man who seeks recognition for his work]

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).