Legal Education Digest
D L Rhode
16(1) Clinical Law Review, 2009, pp43-56
Legal ethics has long been a subject of popular ridicule and bar platitudes, but only in the last several decades has it received serious attention in law schools. The traditional view among legal academics was that professional responsibility was someone else’s responsibility. Although the first American courses in this field date back to the turn of the twentieth century, early instruction was quite limited. The typical offering was a brief sequence of uplifting lectures by a judge or local practitioner. Often no grades or credit were given, and sometimes neither were the lectures. What instruction occurred was long on homilies and short on content. ‘General piffle’ was the description of these efforts by one of the first serious scholars in the field.
Efforts to situate ethical issues in a more realistic context bumped up against longstanding prejudices, including those involving clinics. Until the 1970s, the few clinical programs in existence were extracurricular activities, operating with little institutional staff, funding, or formal ethics instruction. Over the last several decades, both ethical and clinical education have made substantial progress, evolving along parallel, sometimes intersecting paths. As a legal academic whose formative ethics instruction occurred in a clinic, I am a firm supporter of approaches that integrate skills and values. But I also believe that professional responsibility deserves systematic, coordinated treatment throughout the law school curriculum, not just in principle but in practice. We remain a far distance from that goal.
In the early twentieth century, a few legal educators made efforts to integrate more realistic, practice-oriented approaches in law schools. The most prominent, Yale professor Jerome Frank, began arguing in the 1930s that the traditional case-law method left students unprepared for the demands of lawyering.
What Harvard Dean Wilham Thayer at Harvard extolled as ‘incidental’ instruction throughout the curricula was typically so ‘incidental’ that most surveyed students were unaware that it had occurred. Matters were not much improved by Harvard’s efforts to supplement instruction by posting a ‘large’ copy of the Canons of Ethics ‘conspicuously’ in the main building, and distributing pamphlet versions to each student. Specialised courses were not necessarily much better. Most were ungraded one hour classes that focused heavily on the rules. Bar exams did little to encourage a more rigorous approach. Ethics questions were infrequent and typically invited undemanding reflection on topics such as what the state’s ethical code ‘mea[ns] to me’. It is not clear that anyone read the responses.
In continuing legal education, ethics were noticeable for their absence. One survey of forty-eight state bar programs in the early 1970s found not a single course on professional responsibility. As administrators explained, it was ‘impossible to interest lawyers on a large scale in their ethical and public roles’; CLE participants ‘will not waste time on something that won’t help them make money’.
Among legal educators, the reasons for resistance were less prosaic, but no less entrenched. Ethical instruction, particularly if rooted in practice-oriented contexts, suffered from a perceived lack of intellectual rigour. Throughout the twentieth century, law faculties fought to establish their credibility in sceptical academic environments. A practical approach to professional ethics evoked images of a ‘trade school’ that law professors sought to rise above. Yet lecture alternatives were scarcely preferable. A widespread view was that legal ethics like ‘politeness on subways [and] fidelity in marriage’ could not be acquired through course assignments in professional schools.
What turned the tide had little to do with pedagogy and everything to do with politics. The prominent role of lawyers in the Watergate scandal brought public confidence in the profession to new lows. In search of some visible, professionally palatable response, the American Bar Association (ABA) seized on changes in educational standards. In 1974, the Association mandated that accredited schools ‘require for all students ... instruction in the duties and responsibilities of the legal profession ...’ A growing number of states also began to demand such instruction as a condition of admission to practice, and bar examinations increased their attention to ethical issues, typically through a separate multistate exam.
These initiatives have had mixed results. Clearly both the coverage and credibility of legal ethics have increased substantially over the last several decades. Almost all schools require courses in professional responsibility, and three quarters of those responding to the Law School Survey on Student Engagement reported that their school placed ‘very much’ or ‘quite a bit’ of emphasis on the ethical practice of the law. Yet only a minority of students felt that these efforts had significantly helped them develop a ‘personal code of values and ethics’. Other recent surveys have found little coverage of professional responsibility issues outside the required courses, and little attention to issues concerning access to justice. Moreover, many teachers of those courses believe that their efforts are undermined by a mandatory format and the perceived need to prepare students for a rule-oriented multistate bar ethics exam. Examiners’ focus on the law of lawyering too often encourages courses on legal ethics without the ethics.
Other faculty and students, including some in clinical programs, are resistant to significant ethics instruction because they doubt it will significantly affect ethical reasoning or ethical conduct. A persistent assumption is that professional responsibility is largely a matter of moral character, and that it is not possible to alter in a few classroom hours what students have acquired – or failed to acquire – over long periods from family, friends, schools, churches, and popular culture. A related argument is that law schools have no business making that effort. Apart from rules-based issues, the ethical questions worth discussing have no ‘right’ answers and faculty should not be turning their podiums into pulpits.
This critique, however, ignores the possibility of a middle ground. Although many ethical questions have no objectively valid answers, not all answers are equally valid; some are more logical, consistent, coherent, respectful of evidence, and so forth. Nor do all issues of professional responsibility present unsolvable dilemmas, or the task of ‘teaching people to be good’. Many regulatory questions call for the same skills of legal and policy analysis that are standard fare in law school classrooms. The most effective way to secure substantial changes in professional conduct is often through reforming regulatory standards and economic incentives, and legal education can contribute to that effort. So too, a substantial body of evidence suggests that ethical values are by no means as fixed as critics contend. Recent psychological research indicates that significant changes occur during early adulthood in people’s basic strategies for dealing with moral issues, and that well designed curricula can assist the developmental process. Through interactive education, such as client representation, simulations, and problem-solving, individuals can enhance skills in moral analysis and build awareness of the situational pressures that can skew judgement.
How much does capacity for ethical analysis affect ethical conduct? Most research suggests that moral behaviour is a function of four basic factors: (1) moral awareness; the recognition that a situation raises ethical issues, which often involves empathy for those involved; (2) moral reasoning; the capacity to overcome self-interest and cognitive biases and determine what course of action is ethically justifiable; (3) moral intent; the motivation to act on moral convictions and subordinate other concerns such as status and financial interests; and (4) moral behaviour; the ability to act on ethical decisions in the face of situational influences such as peer pressures, organisational reward structures, and diffusion of responsibility for action.
Although individuals differ in their capacity to withstand pressures and temptation, contextual influences have a substantial effect on moral conduct independent of personal ‘character’ or ‘convictions’. One sobering survey found no significant differences in the moral principles characteristic of Chicago ministers and inmates of the state penitentiary; where they differed was in peer influence and opportunity structures.
Situational pressures play an unavoidable role, but most psychological research still finds some modest relationship between moral judgement and moral behaviour. How individuals evaluate the consequences of their actions can be critical in shaping conduct, and education can affect those evaluative processes. It can also make individuals aware of how economic incentives, peer influence, and diffused responsibility can skew judgement, and how to design appropriate responses. Although the classroom experience cannot fully simulate the pressures of practice, it can provide a setting to explore their causes and correctives before individuals have a stake in coming out one way rather than another. How law schools treat issues of professional responsibility matters to the kinds of lives students will have and the public they will serve.
The same is true of pro bono service. Although the American bar has long recognised an ‘aspirational’ responsibility to provide assistance to those who cannot afford it, that obligation traditionally received little attention in law school. Not until 1996 did the ABA amend its accreditation standards to require schools to ‘encourage students to participate in pro bono activities and to provide opportunities for them to do so’. The ABA standards also call on schools to establish policies on faculty responsibilities, including their ‘obligation to the public’.
Only about 10 percent of schools require service by students, and fewer still impose specific requirements on faculty. Even at these schools, the amounts demanded are sometimes quite minimal: half of those responding to an ABA survey required only ten to twenty hours of students. Although most institutions offer voluntary public service programs, only a minority of students are involved. Many students lack on-site supervision or a classroom opportunity to discuss their work or pro bono issues generally. In my own national survey, only one percent of attorneys reported that pro bono service received coverage in their law school orientation programs or professional responsibility courses; only three percent observed visible faculty support for pro bono work. An American Bar Foundation survey of recent law graduates ranked pro bono last on a list of experiences that practitioners felt had significantly assisted them in practice.
If professional responsibility initiatives have not lived up to their full potential, part of the reason involves limited aspirations. At the curricular level, most schools rely on a single required course, which often centres on the Model Rules of Professional Conduct. This focus has been appealing, both because many professors are most comfortable teaching doctrine, and many students are most interested in material that is tested on the Multistate Professional Responsibility Exam. Yet as noted earlier, such a rule-bound approach undercuts what should be one of the course’s central messages: lawyers have responsibilities to the profession and the public that transcend the letter of the law. On matters where professional and public interests conflict, the Rules generally resolve the tension in favour of those doing the resolving. Future practitioners not only need to know what the Rules are before they are in a position to violate one, they also need a sense of what the Rules should be, and how to address issues on which they are ambiguous or leave ample room for discretion.
A more satisfying mission for legal ethics courses would be to build capacities for reflective judgement on issues involving professional conduct, regulation, and career priorities.
For matters of conduct, research on adult learning and moral development argues for an experiential approach. Students should confront actual dilemmas through clinical casework, externships, role simulations, case histories, and problem-solving exercises. Guided reflection can also benefit from interdisciplinary materials. Moral theory, social psychology, and organisational behaviour can help students grapple with competing values and the cognitive and structural forces that impair ethical judgement.
For matters of professional regulation, future practitioners need exposure to how current governance structures operate, as well as to cross-disciplinary and cross-professional materials that suggest strategies for improvement. Discussion needs to include policies on competition, dispute resolution, pro bono representation, and delivery of services that affect access to justice.
A final objective of professional responsibility courses should be to encourage future lawyers to think more deeply about the lives they want to lead, and about how to match their personal values with their career priorities. For many students, this will be their only classroom opportunity to consider how future choices about jobs, work/life balance, and public service connect to the concerns that led them to law in the first instance. A wide range of materials can assist that reflective process, including materials on the conditions of practice, the rewards of pro bono activities, and the career paths of lawyers. Film, literature, and biographies can powerfully convey the importance of considering at the outset of a career what would seem valuable at its end. Substantial evidence suggests that many young attorneys are dissatisfied with the heavy work demands and limited connection to social justice in their practice settings. An informed discussion of these issues may encourage students to think about ways to structure their careers and workplaces in order to mesh their principles with their practice.
My ideal curricula in professional responsibility would require every student to take a specialised course in the subject, linked to a clinic, externship, or pro bono placement. It would also require every faculty member to make efforts to address ethical issues in other courses. And it would design well-supervised pro bono initiatives that attract or require widespread participation by both students and professors. None of these requirements would come without resistance, but all could make a major contribution to the way future practitioners understand their professional obligations and opportunities.
Linking specialised professional responsibility courses to placements in practice holds several advantages. First, when an ethical dilemma arises in a setting involving real clients with real problems, it assumes an immediacy and urgency that no classroom hypothetical can duplicate. Students best learn professional responsibility by being forced to exercise it, in circumstances where it matters. Second, when the experience involves underserved groups, students gain critical insights into how the law functions, or fails to function, for the have nots. Often this experience provides a ‘disorienting moment’, which challenges unconscious class or racial stereotypes, and exposes unsettling inequities in legal institutions. In the process, students can gain cultural competence and a deeper appreciation of systemic injustice. That, in turn, may produce greater commitments to public interest and pro bono work, and to reform initiatives that address unmet legal needs.
It would, however, be unrealistic to place the entire burden of professional responsibility instruction on a clinical, externship, or pro bono program. In any given semester, these placements cannot guarantee an appropriate range of ethical issues. Nor can they always ensure the depth of coverage or faculty expertise that promotes informed reflection. Supervisors often struggle to find adequate time to convey essential skills and substantive knowledge; they cannot be expected to devote substantial coverage to topics of professional responsibility and regulation that do not arise directly out of students’ practical experiences. Moreover, the vast majority of law graduates end up in settings unlike their clinical, pro bono or externship experience; they need exposure to problems rooted in those practice contexts.
Ensuring that range of coverage, avoiding duplication, and providing a logical learning sequence all pose obvious challenges. The task will require a level of coordination and commitment to ethics instruction that is uncharacteristic in most law schools. Confining ethics to a single course inevitably marginalises its significance. Students pick up messages in subtexts as well as texts, and they are much more likely to take professional responsibility seriously if the faculty does so as well. Similar points are applicable to pro bono programs. The inadequacy of institutional support is a missed opportunity for both the profession and the public. And the unwillingness of professors to impose obligations on themselves sets a shameful example. Many professors offer variations on the claim that ‘Everything I do is pro bono’. Would that it were true. At a minimum, law schools should do more to nudge, support, shame, and showcase public service by faculty as well as students.
My first encounter with professional responsibility issues came as a student in Steve Wizner’s Yale law school clinic. The issue involved a welfare client with unreported income. Our client also was enrolled in a dental hygienist program that would give her the capacity for self-sufficiency if she finished. And if her stipend was cut off, she would be trapped in an unskilled low-wage job with little prospect for moving out of poverty. But technically speaking, she was engaged in what conservative politicians of the era lambasted as welfare fraud. I raised the issue in the clinic and asked what I should do. ‘Well’, said Steve, ‘that’s a hard case’. I found this totally inadequate to the occasion. I knew it was a hard case. What I didn’t know was what to do. Twenty years later, when Steve and I were together at a conference program on teaching ethics in clinical settings, I recounted the facts of the case without reminding him of his response. I again demanded to know the right thing to do. ‘Well’, said Steve, ‘that’s a hard case’. And once again I felt the frustration that comes when someone really wise won’t just answer the question. But I have come to realise that his was the right response. On both occasions, it forced me to think deeply about the issue, see all sides, and struggle to reach my own conclusion. It is now a strategy I try to replicate in my own teaching. I’m ever in search of hard cases and disorienting moments that force students to find their own moral bearings in a second-best world.