Professional Responsibility

Taking Account of Skepticism

Law students are rather skeptical that anything good is going to come of a law school ethics course. Students don't expect to learn much more than the body of ethical rules that will subject them to sanctions when they take up the practice of law. (The professional bar lends credence to this view of ethics by examining students knowledge of these rules which only reenforces the notion that learning the ethical rules is what we are supposed to be doing.)

In what sense, do you share this skepticism about the teaching of law ethics? Can you identify the source of your skepticism? To what extent can it be traced to the course in legal ethics you've already taken?

What difference does it make, in the kind of lawyer you expect to be, that you are skeptical about ethics? Consider the following claim: "It makes some differences in a man's performances of his work whether he believes wholeheartedly in what he is doing or feels that in important respects it is a fraud, whether he feels convinced that it is a good thing or believes that it is not really much use after all." [Howard Beecher & Blanche Geer, "The Fate of Idealism in Medical School," in Bartlett H. Stoodley (ed.), Society and Self: A Reader in Social Psychology 125-135, at 125 (New York: Free Press of Glencoe, 1962)]

There are many ways to express skepticism about a course of study in lawyer ethics. Consider the following comments of law students as they attempt to distinguish between morals and ethics. The statements are quotes from student papers. writing abut lawyer ethics.

--"Ethics to me are moral standards of a profession. When I speak of morals, I think of personal morals or those standards continuously developed by a person during his lifetime."

--"I believe that morals are very personal, whereas ethics are the morals of a profession or group."

--"To be ethical is to conform to a set of reasonably defined standards. These standards are determined by an analysis of the 'system' under which one operates, particularly with respect to the history and evolution of the system. To 'possess' legal ethics, if that is indeed possible, one must conform to the standards of the legal system. Morality seems to go beyond the scope of these reasonably defined standards. Morals, as opposed to ethics, are based more on personal opinion."

--"I feel very strongly that we and the whole Bar should be concerned with the 'ethicalness' of our actions. But moral issues--one person's priorities or another's--are part of everyone's permanent, 24-hour-a-day make-up. They certainly enter into how one views his or another's professional actions, but they are not something to be judged wrong by you [a teacher] or anyone else. An attorney's actions, however, can only be discussed and should be judged in light of disciplinary rules and ethical considerations."

--"I have difficulty in viewing ethics and morals as one and the same. I was always of the opinion that morals was associated with religious beliefs and ethics was somehow more objective."

--"Ethics is the term which defines a set of principles which provide guidance for what men 'ought' to do. Some ethical considerations have evolved from religious notions, while others have developed out of philosophical notions. 'Morals,' on the other hand, represent a set of personal values, attitudes, and beliefs through which the individual views the world in which he lives.

"Morals are thus, according to my definition, more particular to the individual. It could be stated that one's set of moral standards determine how one views his or her ethical responsibilities. Thus, each person's make-up affects the way in which he or she interprets certain ethical principles."

--"I personally view morals as something personal that you begin to develop when you are young and continue to build upon until you die. They are your personal beliefs of what is right and wrong. Ethics I believe are the standards of conduct developed by the profession. In practicing law we must consider the ethical standards simultaneously with our own morals when making decisions; however, there may be situations where we discover after analysis that we have a moral problem but not an ethical problem, and vice versa."

--"Our morals are for the most part already learned. What we need is an education in ethics."

--"There is a distinction between ethical and moral and that difference is not merely semantical. Ethics more frequently applies to standards of professional conduct whereas morals generally applies to any standards for good behavior. Therefore certain behavior by an attorney, while not conforming to a given set of community moral standards, might not abridge the ethical standards of the profession."

--"One's morals are governed by being responsible for distinguishing right from wrong at a very basic level. Although it can be guided in one direction or another, morals cannot be taught. One's concepts of right and wrong is inherent in the individual and is developed at an early age. Each person has an innate sense of what he believes is right or wrong. Once that sense of morality is developed it changes very little during one's adult life.

"Ethics pertains to one's sense of duty. Basically, it is the responsibility to perform a task for the person to whom one is liable. Although ethics and morals are separate entities, ethical behavior is governed and limited by one's sense of morality."

--"In my mind, 'ethical' is a somewhat more easily definable concept, whereas "moral" conjures up religious, more subjective symbols and concepts."

--"The term morality implies, to me, a judgmental and condemning attitude toward the behavior and beliefs of others. Ethics, on the other hand, implies condemnation and policing of one's own behavior when it is contrary to one's deeply held beliefs."

What purpose does this effort to distinguish morals and ethics serve?

Just as students doubt that virtue can be taught, they are even more determined that a course in lawyer ethics is not going to teach them anything they might need to learn, anything that is beyond "ethics" as defined by the profession.

--"I do not expect this class [in legal ethics] to teach me values or morals. This is not something you learn 25 years into the 'game plan of life.' My values, my morals, my standards, my ethics, whatever, have long ago been determined. Day by day, year by year, they are shaped. But the basic core has been there forever."

 

--"I think ethics is something you start to develop as a young child. By the time you're an adult it may be a subject you can discuss but it isn't something you can learn. Either you are an ethical person or you are not. People that are ethical demonstrate this in most everything they do. One can talk about ethics 'till the sun goes down' but you'll never convince an unethical person to be ethical."

 

--"Trying to teach law students prescriptive notions of a lawyer's responsibility to society is a vain attempt even for idealistic first-year students and borders on the ridiculous for disillusioned graduating students."

--"I do not understand how you can teach anyone how to be ethical, especially when they are old enough to be third year law students."

--"The moral influence of parents, church, and peer group determines a person's basic morality. Once that determination is made, these values are set for life."

--"My values are formed and I believe they were formed at an early age through my family and peers. . . . I feel I know the difference between right and wrong as an individual, and now I must develop a sense of right and wrong as an attorney."

--"I feel at this point in our lives (by the time we reach law school) each of us have our moral and ethical beliefs etched somewhere within ourselves through our upbringing and social interactions, although we may find it difficult to express these beliefs. For this reason I feel that it would be difficult, although not impossible, to teach legal ethics to the vast majority of law students."

To what extent do you share this skepticism?

If you believe that the study of lawyer ethics cannot or should not extend beyond the Model Rules of Professional Conduct, your willingness and ability to think clearly and articulate your thoughts about ethics and the moral dimension of lawyering is going to be limited. One might imagine a student saying:

Question my own ethics? If I wanted a class in philosophy, I would have taken jurisprudence. It's too late now. If you don't have ethics now, then you are not likely to improve that state of affairs in law school. You can't teach an old dog new tricks. You can talk to people about morals and ethics until you're blue in the face, ministers do it every Sunday, parents do it; you see what good it does. I just don't want anyone preaching to me about morals of any kind. I will have better morals than most lawyers I know. I'm not sure what kind of morals lawyers ought to have or even what kind I will have as a lawyer, but I don't see how a law teacher can teach me to be a good person.

What kind of truth do you see in this student polemic against moral discourse?

Is it the realist or the moral cynic who makes the kind of claims that law students make about lawyer ethics? Do you agree that these claims about ethics are "a way of abrogating responsibility for the values we hold, [and] at best a thin reading of the capacity of intellect and will to assess and alter the values that defines our persons and actions." Larry Churchill, the author of this observation, notes that the psychological determinist, another name for one who holds the notion that it is too late in law school to learn ethics, "holds that since values do not change, or change only in some established sequence, the examination of values in teaching can be no more than a purely descriptive inquiry, something like a sociological description" of values. [Larry Churchill, The Teaching of Ethics and Moral Values in Teaching: Some Contemporary Confusions, 53 J. Higher Educ. 296, 299 (1982)]

There are students who resist the conventional skepticism about ethics:

--"I do not believe that it is ever too late to become an ethical person. Quite to the contrary, I believe that the process of becoming an ethical person is on-going. In my frailties and failures, I can at least find hope for growth and improvement."

--"It is never too late for a healthy person to learn anything, whether calculus or values. To the contrary, a certain amount of maturity is required before a person can ever grasp the concept of ethics itself.... The world has known many child prodigies in the sciences and the arts, but to my admittedly limited knowledge, no such instances have occurred in areas such as philosophy where wisdom and experience seem to be indispensable."

--"I enter this course with the hope that my sense of morality can be attuned with the ethics of lawyering in such a way that 'moral' and 'ethical' become synonymous terms. By learning legal ethics and synthesizing these concepts with already acquired standards of morality, I hope that one could walk away after three years of law school with a definite idea of how to maintain a high level of professional competency without suppressing or abandoning parts of one's moral makeup."

To what extent have you, like the students quoted here, evolved strategies to avoid ethical skepticism? If you do not share your colleagues skepticism, how is their skepticism to be confronted when it makes an appearance (as it inevitably does)?

In the following scenario an imagined student addresses concerns raised about the skepticism expressed by his fellow students:

I've not been very happy with law school. It's not what it's cracked-up to be. Sometimes I wonder whether it is law school or me, but something seems to be missing. I've changed since I came to law school. Part of how I've changed is worthwhile. I'm better organized, disciplined, analytical, and more articulate. I haven't learned all the skills I need to be a lawyer, but I've learned a lot. But there's something wrong, something missing. And I don't know exactly what it is. I feel I've given up a valuable part of my self to become a lawyer. I'm not blaming the law school for what's happened, but then maybe I should.

I came to law school, as did many of my classmates, with the idea of making a contribution, doing work that would help others. Yes, I'll probably make decent money in the process, but that was not high on my list of reasons for coming to law school. In most jobs--teaching, social work, government--you're never going to get anywhere. You get caught up in the bureaucracy and never really accomplish anything. As a lawyer there's the possibility of doing something worthwhile and helping people solve real problems. Doing work that is interesting and different every day would make being a lawyer better than most jobs. Oh, I know a lot of folks are down on lawyers, and that is a problem.

So, what happened to all my fantasies about how wonderful it was going to be when I was a lawyer? I came to law school with hopes and dreams and learned right away that what most of the professors wanted was for us to learn legal rules. There is all this talk about learning to 'think like a lawyer' but the teachers are confused about what they mean by this handy shibboleth. They are even more confused about grades. They tell us grades are blown out of proportion, but then they set up the grade system and perpetuate it. Many of the courses are narrowly focused on learning what we need to pass a test. The most important thing in law school turns out to be knowing how to regurgitate legal doctrine on final exams.

For the most part, we never deal with the broader social and political issues raised in the cases we read. Some teachers seem open to the broader issues but they spend little time on them. And when we do talk about social issues the discussion never really goes anywhere. Public policy is a polite way to talk nonsense. In some cases, teachers made it clear they weren't interested in the big questions. Or we get put down for trying to raise certain issues.

A course in legal ethics might be a chance to raise important questions. It may be too late, but we need to give it a try. I'm troubled by the reputation of the legal profession. It's hard to believe that lawyers are as amoral as our critics suggest. Has the profession really gotten that bad? And if the profession is morally rotten, what are we going to do about it?

I think the distinction between morals and ethics is an artificial one. How can you talk about being an ethical lawyer and ignore a person's character? I don't see how it's possible to compartmentalize your life into lawyer and person. We all know that you can practice law by the rules and still be a shyster. How many lawyers get punished for the hard-ball tactics they practice? Not many. The problem with the legal profession is not lawyers who violate ethical rules, but lawyers who don't have any sense of public responsibility.

I don't want anybody preaching to me about morals either. But maybe it's time we take seriously the questions we've been putting off about lawyers and how they justify doing what they do.

I have serious questions about what goes on in law school, about what we are taught, and what doesn't get taught. Why isn't there more opportunity to get clinical experience so you don't have to learn your mistakes the hard way when you get out of law school?

Why doesn't someone do something about the destructive competition in law school? Why don't they revise the curriculum and use more innovative teaching techniques so that law school is less boring? For some reason, I think these questions have something to do with being an ethical lawyer."

How would you respond to such comments?

There are many ways and various contexts in which we are required to work out and get beyond skepticism. Consider Michael Novak's introduction to what he calls a "philosophy of self-knowledge":

This book is an attempt to work out some of the problems of self-identity, and some of the problems of belief and unbelief. The roots of the two sets of problems are entangled. For in deciding who one is, one relates oneself to others, to the world, and to God. If there is a God, one approach to human life is fitting. If there is not a god, another approach makes its demands. But there seem to be many men [and women] today--and their numbers constantly increase--who both believe and disbelieve, who are not agnostics but who recognize in their hearts a divided allegiance. Through all their busy activities for the betterment of men, they keep 'an open mind' regarding a power or intelligence they dare to call 'God.' 'Ah, mon cher,' Albert Camus has written, 'the weight of days is dreadful. Hence one must choose a master, God being out of style. Besides, that word has lost its meaning.... Take our moral philosophers, for instance, so serious, loving their neighbor and all the rest--nothing distinguishes them from Christians, except that they don't preach in churches.' [Michael Novak, Belief and Unbelief: A Philosophy of Self-Knowledge 15 (New York: Macmillan, 1965)]

Replace God in this passage with ethics and we begin to work on this problem of skepticism.

How do the following propositions fuel skepticism about ethics?

--"Moral philosophy is an exercise in academic nonsense."

--"Ethics is just a game of competitive righteousness."

--"There is no one that can tell anyone else what their morals and ethics should be."

--"We might be able to talk about lawyer ethics, but personal morals is another matter. Morals and ethics are not the same thing; ethics are like rules, morals are like opinions about what you want to believe."

What would you recommend, if anything, as an antidote to the skepticism about ethics that is so rampant in legal education?

I imagine your response to this invitation: "My God, I haven't the foggiest notion." Or, "The question is unfair. How am I talk about a course I have not yet taken? If I knew anything about legal ethics I wouldn't need the course; I wouldn't be a student."

You may not agree that law students are skeptical about ethics. If they are not skeptical, what makes talking about the ethics of lawyers so difficult, or as ethicist and moral philosopher Bernard Williams said of writing about ethics, "hazardous business"? [Bernard Williams, Morality: An Introduction to Ethics (New York: Torch Book, 1972)]

 I do not use moral skepticism as moral philosophers use it, but rather as the kind of lay skepticism we have about the value of a particular endeavor.

 General Reading: Jedediah Purdy, For Common Things: Irony, Trust, and Commitment in America Today (New York: Alfred A. Knopf, 1999) [Purdy was raised in West Virginia; his mother, Deirdre Purdy, graduated from the College of Law, at West Virginia University]