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ETHICS and the LEGAL PROFESSION
Prometheus BooksCopyright © 2009 Elliot D. Cohen and Michael Davis
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IntroductionThere are two general approaches to teaching "legal ethics," "professional integrity," "lawyer professionalism," or "the professional responsibility of lawyers" (all these terms naming the same subject more or less): the legal (or compliance) and the ethical (or philosophical). The legal approach asks, "What must a lawyer do to stay within the rules? How does a lawyer stay out of (serious) trouble?" The legal approach treats the ABA's Model Rules of Professional Conduct as just another statute or regulation, a constraint others have imposed as a condition of practicing law, or a close relative of the criminal law or, at least, of consumer protection (such as the truth-in-lending law). Naturally, a rational person would want to know how close she can get to that limit without getting on the wrong side of it. The ethical approach, in contrast, asks, "What must a lawyer do to be both a good lawyer and a good person? How should a lawyer contribute to 'the practice of law'?" The ethical approach treats the Model Rules as a standard voluntarily accepted to achieve a purpose all lawyers share, earning a living in a morally praiseworthy way. Lawyering is to be a "noble undertaking." One should aim for the target's center (to be as good a lawyer as one can be), not thetarget's edge (to be as poor a lawyer as one can get away with being).
While most texts in legal ethics seem to take the legal approach, this volume takes the ethical. Legal ethics is, we assume, not a mere side-constraint on the practice of law, itself a merely technical manipulation of language; legal ethics is essential to understanding what lawyers do, to understanding it not as theoretical knowledge, language game, or mere occupation, but as a profession. We do not discount the importance of rules in defining the practice of law. But we do assume that lawyers are much more likely to follow the rules competently if they interpret them as part of a common attempt to serve a certain moral ideal (justice within the bounds of the law) in a morally permissible way.
FALL AND RISE OF LEGAL ETHICS
The term "professional ethics" has been connected with lawyering in America at least since the publication of George Sharswood's 1854 essay, Professional Ethics. Sharswood, then dean of the University of Pennsylvania's law school (and before that a judge for two decades), wanted to help young lawyers to start their legal career in the right way. His essay was originally published about seven years after the American Medical Association adopted its first code of ethics and more than a half century after the English physician Thomas Percival published a similar essay for physicians (with a similar title), Medical Ethics. Professional ethics was, it seems, already "in the air." It would, however, be another half century before lawyers-or engineers or any other non-medical occupation-adopted a formal code of ethics.
Sharswood's essay, like others, was not a code of ethics, though some writings on ethics on the same subject did serve as law school texts or handbooks for practitioners. The purpose of such essays was, as Sharswood put it, "to attempt to arrive at accurate and intelligible rules of action, by which to square the conduct of professional life." The early books on professional ethics were like the contemporaneous guides to Christian gentlemen, which they much resembled. They gave the young lawyer a high-minded interpretation of legal requirements (statute, oath, and various customs) under which he was to practice.
Perhaps that was what legal ethics remained until the 1930s or 1940s. Then something changed and law schools began to drop the subject. By the late 1950s, formal instruction in legal ethics had disappeared from American law schools almost completely. The same trend was evident in medicine, nursing, engineering, teaching, and most other professions. Ethics was no longer "in the air."
The air changed again in the 1960s, beginning with medicine. For lawyers, the Watergate scandals of the early 1970s seem to have been decisive. Many of those involved, including President Nixon and Vice President Agnew (both of whom resigned in disgrace), were lawyers. In response, the American Bar Association required law schools to provide all candidates for a professional degree "with instruction in the duties and responsibilities of the legal profession." The most common approach to providing this instruction was (and remains) a required course. In most of these, the Model Rules of Professional Conduct, supported by a casebook, is the primary text. The course is much like any other "code course" (e.g., Commercial Transactions) except that, owing to a shortage of good cases, it often strikes students as intellectually thin.
While the embarrassments of the 1970s seem to have been the main reason why law schools began to teach legal ethics again, there may have been two other reasons as well. One is the low regard almost everyone seemed to have-and still seems to have-for the honesty of lawyers. Gallup regularly polls Americans on their attitude toward a range of occupations. Only a fifth of interviewees rate lawyers' honesty as "high" or "very high." Lawyers in fact rank below "business executives" (and not comfortably above "used car salesmen"). In contrast, three-quarters of those polled rank the honesty of nurses, pharmacists, and military officers high or very high. About 50 percent rank clergy, college teachers, and even police that high. Even lawyers seemed to have a low opinion of lawyers. In 1978, Warren Burger, then chief justice of the US Supreme Court, criticized the bar for incivility, incompetence, and lack of preparation.
Another reason for the return of legal ethics to law schools may have been that legal ethics, tracking professional ethics generally, had become a different-and intellectually more attractive-subject. Philosophers, especially philosopher-lawyers, were bringing conceptual and moral analysis to questions of legal ethics. They substituted for Sharswood's sermons a systematic attempt to understand legal ethics as a rational undertaking. They provided legal ethics with intellectual resources not available before, a resource courses in legal ethics have been slow to use. Legal ethics, though an active field of legal scholarship, remains a difficult course to teach. What can a course in legal ethics achieve?
ETHICS AND THE PRACTICE OF LAW
Answering this question presupposes an answer to another question: What is ethics? While "ethics" can be a simple synonym for ordinary morality, it is used here to name a discipline (and course of study). That discipline studies morality. There are, however, at least two ways to study morality: (1) as an observer and (2) as a participant. An observer, for example, a sociologist, seeks to describe (rather than assess) the particular moral views of a given group. Such groups can include not only communities of language users related by nationality, race, ethnicity, religion, but also those defined by a certain way of earning a living. Lawyers constitute such a group. And so, for an observer of morality, legal ethics would be the study of the moral views of lawyers as expressed in what they do, including what is written in codes of ethics, ethics opinions, case law, and statute. The legal approach to legal ethics (as discussed earlier) tends to use "ethics" in this descriptive sense.
In contrast, the study of morality from the perspective of participants (that is, moral agents) attempts to put their sense of what they are doing, in order, that is, to understand morality (or some part of it) as a rational activity. It is, in this respect, philosophical. As a philosophical discipline, legal ethics would not only describe what, for example, the ABA's Model Rules say or mean, but would also ask whether a moral agent can rationally endorse the rule (and, if he can, why). Philosophical ethics is, in this respect at least, prescriptive.
When legal ethics is understood in this second way, it amounts to a kind of "applied" (or "practical") philosophy, a discipline concerned with understanding-and helping to resolve-certain moral problems arising in a practice. Insofar as legal ethics is taught as a philosophical discipline, it affords students an opportunity to see the practice of law in relation to more abstract, philosophical questions. For example, what is the relationship between legal ethics and ordinary morality? Can ethical theories-such as Kantianism and Utilitarianism-help lawyers solve their ethical problems? What is the nature of a profession? What is the relationship between the adversary system and truth? Is the adversary system really the best system of justice? How should a lawyer proceed when one duty conflicts with another? Can a good lawyer be a good person? Do lawyers who work for government have special obligations (or duties) to the public?
There is nothing revolutionary about seeing legal ethics in this way. That is how the preamble to the ABA Model Rules understands it:
Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules....
Any code of ethics, regulation, or statute provides a framework for the exercise of moral judgment without necessarily providing a clear directive. Because lawyers are always (primarily) participants in the legal system, not mere observers, the philosophical approach to legal ethics should always be a part of a course in legal ethics. For easy questions, a description of what the Code says or what lawyers do may provide a reasonable guide to what a lawyer should do. For the harder questions, however, there is no substitute for the philosophical approach. This book accordingly takes a philosophical approach, but not without providing enough description to provide a context for decision.
WHAT CAN LEGAL ETHICS TEACH?
A course in legal ethics that takes such an approach can teach ethics in at least four ways: (1) sensitizing students to ethical problems; (2) providing knowledge helpful in the solution of those problems; (3) improving ethical judgment and (4) increasing ethical commitment. How can such a course in legal ethics accomplish all these things, indeed, any of them?
Teaching ethical sensitivity is much like teaching sensitivity to legal issues. A first-year law student may begin class not seeing most of the legal issues that arise, say, when he buys a theater ticket. But as he reads cases in which issues arise, is posed hypotheticals in which similar issues are hidden, and is given rules of thumb to guide him in his search for issues, he eventually begins to see the issues-without even trying. A certain kind of looking becomes "second nature." In the same way, lawyers can learn to see issues of legal ethics in what they do. This book includes a large collection of "problems" requiring the identification of such issues. The readings are meant to help prepare students to identify issues in the problems.
Ethical knowledge is whatever knowledge is relevant to resolving issues of legal ethics. Some of that ethical knowledge is legal or quasi-legal, a state's regulations governing legal practice or the Model Rules. Some is psychological, for example, the difference in likely effect of just telling a client "No way, never" and explaining in detail what is wrong with a certain course of conduct. And some is institutional, for example, the avenues open within an organization or the legal profession for getting advice on how to deal with an ethical issue. It is therefore important in discussing the problems not only to identify ethical issues but to pass on to students enough ethical knowledge to make a reasonable solution to the problem possible. Many of the readings include ideas for how to solve specific problems. Sometimes the solution is individual, saying this rather than that, or using this procedure rather than that. Sometimes it is institutional, for example, changing some provision of the Model Rules or the federal rules of evidence.
Judgment tends to improve with practice, especially with practice that includes defending one's decision by reasoned argument in the face of reasoned criticism. The Socratic method, moot court, and legal clinics are all standard means by which law school seeks to teach legal judgment. The same means may be used to teach the specifically ethical part of the good judgment a good lawyer must have.
Students who have enhanced their ethical sensitivity, knowledge, and judgment in some such ways as this may be expected to have had their commitment to ethical practice enhanced as well-where "commitment" is measured by a willingness to act on one's ethical judgment. There are at least two reasons why teaching legal ethics should increase ethical commitment. First, experience of openly discussing ethical issues should give students confidence in their own ethical judgment, making them more likely to act on it than they would without that experience. Second, the open discussion of legal ethics should help students distinguish the few controversial questions from the large body of settled matters. Students who believe that lawyers (generally) do certain things in certain ways (for good reason) will be more likely to do the same than lawyers who view that way of doing things as a mere arbitrary imposition.
WHAT IS A PROFESSION?
Since Sharswood, legal ethics has been understood to be "professional ethics." What then is a "profession"? And what does profession have to do with ethics? Unfortunately, "profession" seems to be as ambiguous as "ethics." The term can be a mere synonym for "occupation"-an occupation being any typically full-time activity defined in part by an easily recognizable body of knowledge, skill, and judgment (a "discipline") by which one can (and people typically do) earn a living. It is in this sense that we may, without irony or metaphor, speak of someone being a "professional thief," "professional beggar," or "professional athlete," provided the person in question makes a living by the activity in question. While law certainly is a profession in this sense ("the second oldest," as a joke has it), this is not a sense having anything to do with legal ethics.
"Profession" can also have the more limited sense (also common in English) of honest occupation: "Plumbing is a profession; prostitution is not." This is, however, still not the sense that allows us to say (as lawyers often do), "Law is a profession; plumbing is not." A profession (in the relevant sense) seems to be a special kind of honest occupation, one that we can compare to other similar occupations such as medicine, engineering, architecture, and so on.
There are at least two approaches to conceptualizing profession in this special-kind-of-honest-occupation sense. One, the philosophical, will be a focus in the readings to follow. For now, it is important to explain why the other, "the sociological," should be ignored here. The sociological approach has its origin in the social sciences (as the name suggests). Its language tends to be statistical. The statement of the conception, a definition of sorts, does not purport to give necessary or sufficient conditions for some occupation to be a profession but merely what is true of "most professions," "the most important professions," "the most developed professions," or the like. Every sociologist concerned with professions seems to have a list of professions that the definition must capture. Law and medicine are always on the list; the clergy, often; and other occupations commonly acknowledged as professions, such as engineering, sometimes.
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