Professional Responsibility

Can Virtue Be Taught?

<1> We now mandate the teaching of legal ethics and made it another subject in the law school curriculum without first exploring what ethics means, how ethics works in the day-to-day life of lawyers, or what obstacles might exist to teaching and learning ethics in a professional school.

<2> The unexamined premise, widely accepted and unquestioned, is that legal ethics is indeed a subject to be taught and learned by those who set out to be lawyers. We hold, at the same time, quite stubbornly to the intuitive notion that students have already acquired their moral and ethical sensibilities before they get to law school and that a legal ethics course cannot be about morals at all. Consequently, we find something called legal ethics to teach, all the while holding to the notion that ethics (if by legal ethics we mean real ethics) can't be taught.

Plato addresses the question whether virtue can be taught in the Socratic dialogues and it is still a question that we must confront. Yet, law students and their teachers who assume that ethics cannot be taught simply avoid the question and assume that the answer is obvious. In contrast, I believe that ethics can be taught and learned (as we learn anything truly worthwhile), and consequently find myself at creative odds with those who believe that ethics teaching is futile and a fool's errand.

<3> We are, in legal education, quite earnest when we say to ourselves, and the outside world,that we teach ethics in law school. We want to believe that is what we do and that we do it as best we can. We assume that the ethics we teach must be shaped by the context in which it is being taught--a professional school--and in which the ethics must be practice--in the practice of law. We are, we assume, in ethical matters, lawyers and not journalists, advocates not social workers, counselors not therapists. We expect, without question, that legal ethics will be distinct to the profession in which it is embedded.

<4> We further claim that legal ethics allows and demands that we stand apart, not only as a distinct profession, but as having an ethic and ethos that departs from the dictates of ordinary morality. Lawyers, in the view of the ethic and ethics of lawyering assume that the morality of lawyers (turning as it does on adversarial and partisan advocacy) conflicts with notions of ordinary morality.

The assumptions we make about legal ethics exempting us from the claims of ordinary morality sets up a tension between law and ethics, legal and moral discourse. We see the tension and conflict most clearly when we try to make inquiry into lawyer ethics by way of conversation and moral discourse as well as by distillation of ethical rules.

<5> One way we put our assumptions about legal ethics into practice is to treat legal ethics as far as possible like other courses in the law school curriculum. Law teachers have "legalized" ethics so that a legal ethics course is made to look like a law course. In this way, lawyers (and their teachers) have the best of all possible worlds--the claim to ethics without actually coming to grips with ethics, ethics devoid of moral discourse.

The pedagogy of legalistic ethics is a pedagogy anathema to ethics. Law teachers of legal ethics accept, often uncritically, an adversarial ethic as both reality and ideal, an ethic firmly bottomed on practicalism, compartmentalization, and role-morality. At its worst, a legalistic approach to ethics ignores the reservations and healthy skepticism that students and young lawyers have about the adversarial ethic and its relation to justice.

The legalization of legal ethics is perfectly reflected in L. Ray Patterson's Legal Ethics: The Law of Professional Responsibility. Patterson argues that the professional responsibility course "is directed primarily to the rules of conduct for lawyers and rules relating to the practice of law generally." A professional responsibility course, in Patterson's view, is "a law course involving rules of law and legal problems." Patterson explicitly and emphatically rejects the notion that professional responsibility is rooted in ethics, or an understanding of ethics and moral philosophy. A course in legal ethics is a law course. The body of ethical rules governing legal practice is viewed by Patterson, and others, as the law of lawyering.

There is indeed something "law-like" in the rules of legal ethics, the breach of which subjects the lawyer to punishment. Patterson is right to suggest that ethical decisions are made within a legal context. Some professional practices, like the misappropriation of client funds, are not only ethically wrong but criminal in nature. In other instances, such as the failure to file lawsuits within prescribed statutory periods or the neglect of a client's case (e.g. failure to file a brief), involves not only professional ethical standards but malpractice for which the attorney may be civilly liable for damages. Given this "law" of professional responsibility, some ethical problems can be resolved by finding and applying appropriate ethical/legal rules.

Professor Patterson is right in suggesting that the growing body of law and standards of professional responsibility deserves serious study as a body of emerging legal principles. There is no harm and much to be gained from a study of the law of lawyering. It would be quarrelsome to quibble over whether such a course should be called Professional Responsibility or The Law of Professional Conduct. It is somewhat more problematic however, when Professor Patterson appropriates "legal ethics" as the title of his book and then summarily declares that legal ethics is a matter of law not ethics. (37)

Richard Wasserstrom suggests a strain in our legal thinking that has brought about this legalization of lawyer ethics. The law, says Wasserstrom

seeks to assimilate everything that happens to that which has happened. It seeks to relate any new phenomenon to what has already been categorized and dealt with. Thus, the lawyers' virtually instinctive intellectual response when he is confronted with a situation is to look for the respects in which that situation is like something that is familiar and that has a place within the realm of understood legal doctrine. (38)

Wasserstrom goes on to warn that if you "are genuinely concerned with far-reaching and radical...solutions to social ills," then you "ought to be on guard against and ought to mistrust this powerful tendency on the part of the lawyer to transmogrify what is new into what has gone before or to reject as unworkable or unintelligible what cannot be so modified . . . ." [Richard Wasserstrom, Postscript: Lawyers and Revolution, 30 U. Pitts. L. Rev. 125, 129 (1968)]

<6> Law teachers make ethics look like law and disguise ethical thinking as legal thinking so ethics will be more palatable to the law-trained mind. It is law teachers who make ethics compatible with existing notions and expectations of the character, talent, skills, and sentiments that will lead to success in a world defined by an ethic of adversarialism.

<7> The taste for legalism precedes entrance into the hallowed halls of the law school. But it is law teachers that are the paid gatekeepers to the world of law. And it is the law teacher gatekeeper who teaches legal ethics and professional responsibility as an ahistorical, asocial, and apolitical regulatory scheme, a body of rules. The student is asked, implicitly, often explicitly, to assume that the relationship of attorneys and clients, to each other, to law, and to the broader world is devoid of significant moral content, that lawyers who do the bidding of their clients must have no concern for the ramifications of their actions (or their clients) beyond the courtroom. The effort to separate and isolate the lawyer and her ethical worldview from the broader social world where legal skills are witnessed is sanctioned by a rule-oriented legalistic conception of ethics, a brand of ethics especially devised, and legalized, for the benefit of law students.

<8> William Twining some years ago wrote of two powerful images of lawyering: Pericles and the plumber. The legalist views the lawyer as a kind of plumber. Plumbers have only the most limited need for ethics, and consequently, if we imagine lawyers as legal plumbers, we can get our ethics from a set of rules. But the legalist flounders when he tries to imagine an ethics of lawyering fit for Pericles as well as the plumber. If we are to think of lawyers as leaders, teachers, planners, statesmen and stateswomen, then the "simplified amoral universe" of the lawyer as technician/plumber ethic will not suffice. When the ethics of lawyering is reduced to zealous representation and an adversarial ethic limited only by constraints of law, then we have both simplified our ethics, turned ourselves into ethical plumbers, and taken up residence in what we assume is an amoral universe. Unable to imagine the moral dimension in which all lawyering must take place, the legalist holds to ethics as a set of rules that governs the competition of skilled warriors.

<9> Simply and crudely put, the teaching of legal ethics in American law schools is a facade and a fraud. We teach the law of lawyering which is the most painless form of ethics we can imagine.

<10> One of the foremost problems in teaching legal ethics is determining what we mean by ethics. The question, what we mean by ethics, is largely ignored in the pedagogy of legal ethics. We assume we know what we mean by legal ethics, bootstrapping our way into a sense of ethics without thinking about it. As legal ethics comes of age, and a new generation of teaching materials appear, the question--what is ethics?--still haunts us. In the teaching of legal ethics the time has come to take account of our ghosts.

<11> There is now a general consensus that legal ethics is best taught by using problems and dilemmas that arise in legal practice. The problems are usually those that neatly fall into (or agonizingly between) existing provisions of our ethical rules. For example, whether the lawyer can jointly represent two criminal defendants of varying degrees of involvement and with different criminal records who have been charged with a single crime. The problem is clearly a question of conflict of interest, and as a possible complication, confidentiality as well. What we do not find in law school ethics is how the representation of client's at the cost of others in society may undermine rather than promote the common good, or how to deal with the knowledge that the systematic practices of the police, judges, and other lawyers undermine social justice. In the law school teaching of ethics, it is the client that commits perjury, not policemen or prosecutors. One might ponder the meaning of an ethical problem that forces the student to elect to either defend a client who commits perjury or abandon the client. Is it only our clients that present a problem of truth-telling? One begins to wonder about the ideological underpinnings in the selection and teaching of "practical" ethical problems.

Our students, and we their teachers, are indeed a pragmatic, rational lot, an orientation that predisposes us to an image of ourselves as problem-solvers (solving in legal ethics what Thomas Shaffer calls "quandaries" and others call ethical dilemmas). Shaffer observes that

[t]he most common method in legal education, and especially in the study of professional responsibility, has been to talk in quandaries. Our penchant for the study of cases in law carries over into a preference for cases in morals and so we present a dilemma and say, "What would you do?"

Shaffer argues that the quandary method while perhaps unavoidable is of limited value.

Lawyers are good at "defining" problems, developing alternatives, exploring consequences, and deciding on an appropriate resolution. The good lawyer knows how to look at a problem and figure out what to do. There is a strong tendency to take what we do well, problem-solving, and use it as a method that can be applied to any complex problem or issue. The method used to solve a legal problem is turned (with a vengeance) on ethical problems. When legal ethics is subjected to the pragmatic talents of the problem-solver it becomes just another set of problems, no more or less difficult than those found in administrative law or corporations. But practical problem solving is not enough. The use of rational problem-solving skills is so deeply a part of the legal mind that it comes to be viewed as the only method to be used when confronted with ethical problems.

Legal ethics is made relevant and appealing to law students by grounding the study of ethics in practical (law-like) problems, in a pedagogy of practicalism. The pedagogy of practicalism in professional ethics focuses on what the lawyer must do in response to a "real problem," in contrast to who she should be. Focusing on rules and situations, the pragmatist steers away from moral judgment and moral discourse. Consequently, there is little focus on virtue, on the character reflected in our choices, and on the person we discover ourselves to be when we do what lawyer do and think the way lawyers think. We focus instead on the problem, on the situation, on the role rather than the person.

An ethics of problem-solving suggests that professional life is an unending series of ethical dilemmas in which one "can't win for losing," every choice a painful one. When ethical choice is presented as competing goods, the implicit message is that ethics is for losers. The practical problem-solving approach to ethics can obscure the fact that it is what we bring to an ethical dilemma, as much as any rule or principle that we might apply to the problem that will define our moral judgment. The pedagogy of practicalism leads to a disembodied ethical self, a conception of ethics as a game, as part of the strategy and techniques integral to the courtroom warrior and gamesman.

A pedagogy of rules and rule-following undermines the students' perception of the value of legal ethics as ethics. Law students "know" that lawyers do not spend an inordinate amount of their busy day worrying about ethics and the body of ethical rules that govern their practice. Even so, there is a sense of security that comes from an ethics premised on rules. Rules suggest answers. Law students, as lawyers in general, tend to be pragmatists who want to solve problems, not wallow in them (one premier virtue of law is that it helps resolves disputes and answers questions). Disputants who employ lawyers expect resolution. Lawyers traffic in answers. We know finality first-hand and offer it to our clients. This does not mean that answers come easy, or appear by some form of magic, or that finality is always possible. Sometimes, law and its resolutions, do not provide finality, even when there are answers in abundance.

Uncertainty poses a threat to lawyers and to legal thinking. (One of the frequently stated reasons for revising the Code of Professional Responsibility and devising what we now know as the Rules of Professional Conduct was that lawyers were too often placed in situations where existing ethical rules provided inadequate or conflicting answers and thus more certainty in resolving ethical problems was needed.) In times of uncertainty, we demand of even ethics that it be a source of answers. We expect ethics to rationalize and reconcile the many cross-currents and contradictions that lie at the heart of professional life.

<12> The problem with the teaching of legal ethics is that we are never beyond an ethical vision of the world, even when we assume we have escaped the quagmire of ethics by staying close to the rules. What law teachers do in the name of ethics may, upon closer inspection, turn out to be not just law but a peculiar kind of ethics.

<13> When we give a course a name (legal ethics, professional responsibility) we link the course to a strand of the profession's history. There is some significance in what we call our work, the name we give a law school course. Names lend authority, words bind us to meanings. We cannot make names and words mean anything we want. A law school course is constructed around a name. Contract teachers believe they have an obligation to teach something called contracts.

The names we attach to our courses are suggestive of the way we want others to see and regard them. For example, what is one to make of the juxtaposition of terms like legal and ethics? Do we face an anomaly similar to the humor invoked at the mention of military music? Does the idea of legal ethics suggest a perspective, a way of seeing the world, a mode of understanding, or simply a body of self-protective rules? And if the phrase "legal ethics" means nothing so lofty as something like the pursuit of the "good life," can it not still point to some practical and pragmatic ways of thinking about what we do as lawyers?