Comment: This article is rather old but it is the only one on the subject I am aware of. Even in the event there are more recent articles it is doubtful these serious problems going to the root of many of the legal profession's problems have been resolved.
Fifteen minutes into the class precisely one student has spoken. The rest, with edgy apprehension, look down at the floor, the desks, their books--everywhere but at their guest teacher.
Although it sounds like a high-school session on personal hygiene, these averted faces actually belong to a class on professional responsibility at an American law school. Trying to draw the class out by playing a client seeking counsel, the instructor removes his jacket. "Do I have to take off my tie, too, to convince you? I'm a printer. Talk to me," he pleads. No dice. There is enough free-floating anxiety in this room to power a small city for a year, but not enough engagement, it seems, to get a minor league discussion going. Finally the teacher, himself a practicing attorney, throws up his hands in exasperation: "Lawyers are supposed to be helpful to people. If you disagree with this, please go to another school."
Why is the course on professional ethics almost universally regarded as the dog of the law school -- hard to teach, disappointing to take, and often presented to vacant seats or vacant minds?
Some blame the bar for imposing the subject as a required course, thereby practically chaining faculty to a survey format; others fault the faculties themselves for past neglect of ethical issues. Many point to a palisade of student indifference, the attitude, as one Harvard Law School professor puts it, that "it's not important, or that it's all obvious or irrelevant, because the demands of the world will dictate how they behave."
Then there are questions of practical utility, "Courses in professional responsibility are about as useful to a practicing lawyer as a valentine is to a heart surgeon," NYU law professor Anthony Amsterdam once said. Stephen Gillars, author of a popular casebook on legal ethics, notes that hard work spent on learning and comprehending the often counterintuitive rules of the profession is "without much apparent payoff--it is the one course whose information can't be resold...It's not information you can make attractive to clients."
Like practitioners, students may find it difficult to develop an interest in ethics until, as one writer put it, "It's damage-control time," but their sometimes active hostility to the subject is another more complex matter. Pondering this phenomenon two years ago, STUDENT LAWYER columnist Rosemary Harold concluded that ethical positions involved "so much of a personal, emotional stake that traditional law school debate breaks down." Students are threatened enough by having their intellectual limitations revealed on an almost daily basis; having also to bare their souls strikes too close.
To professors, this nowhere-to-run aspect is part of the appeal. Andrew Kaufman, who has taught professional responsibility for nearly 25 years, observes: "It's the one course where students have to decide what to do and how to do it. There's none of this 'on the one hand, on the other hand' hedging." Teachers call it "decision-making"; students call it "exposure."
To make professional responsibility more relevant and more palatable, law schools are introducing innovations in its teaching. The bad news is that none of this may make much of a difference. Why? Because problems inherent in the structure of legal education and, more important, trends within the profession itself seem to be undercutting their efforts. Ultimately, the problem may lie less in the teaching than with what's being taught--and in the bar's uncomfortable relationship with its own standards.
In a late 1970s study of legal education, Ronald Pipkin, associate professor of law at the University of Massachusetts, found disturbing "curricular paradox" in the teaching of legal ethics. In legal education, analytical skill gets first prize, and this is what the Socratic method aims to develop. Sensitivity which is best nurtured by discussion, ranks last. Discussion, not Socratic method, is the primary mode for teaching professional responsibility, and that automatically conveys second-class status to both faculty as well as students. Those academic norms that subtly consigned professional responsibility to an intellectual backwater aided in developing "professionals who understand matters of professional ethics to be peripheral to their role."
Pipkin also found traditional methods of teaching professional responsibility based on outdated assumptions about how people learn ethical behavior. Passive learning by preaching, intellectualization, and memorization can take one only so far. To reach higher levels of moral reasoning, students have to "personally engage" in the resolution of ethical dilemmas. Yet critics see usual classroom instruction as "too abstract, narrow, and insufficiently ego involving" to offer much assistance.
In short, we may indeed be able to inculcate professionalism in law students, but not by present methods. Worse, Pipkin concluded, "the prevailing mode of instruction in fact socializes students into the belief that legal ethics are not important." A better way to capture attention and engage emotions is role-playing, yet even today Pipkin finds that underused, perhaps because it requires professors to relinquish some control, permit the insinuation of "extraneous experience," and accept that learning comes from the students themselves.
Another pedagogical problem is that subjecting ethical regulation to orthodox case analysis is like conducting autopsies only on examples of "professional pathology." If that's all there is, Pipkin argues, the rules will be perceived as no more than "minimal standards set in order to avoid charges of misconduct or as a facade for self-serving privileges." Where's the incentive to reflect credit on the profession, not just skirt the obvious traps? Others criticize the absence of positive role models in professional responsibility courses. Even the most polished videotapes show lawyers after the fall--or on their way to it. Granted, happy endings may lack dramatic punch, but isn't it possible to introduce attorneys who worked through ethical dilemmas with both professionalism and humaneness?
Of course, it's not just a stepchild position in the curriculum of inappropriate pedagogy that defeats courses on professional ethics. One second-year student at Temple Law School, nearly through the schools new program combining trial advocacy and professional responsibility, observed that in mock disciplinary proceedings staged within the course, practicing attorneys serving as "judges" would suddenly shift from abstract discussions of the Model Rules to a closing of ranks in support of student "lawyers" hauled before them on grievances. The message conveyed was not one of the bar upholding its own standards: "The feeling [we got]," says the student, "is that there are a lot of really scummy lawyers out there, but if they're not going beyond the canons, that's between them and the people they screw-over." Fraternity apparently mattered more than justice--or professionalism.
Another student, another school, was dismayed when upperclass friends uniformly advised him to lie about how many ethics classes he'd attended: "It didn't seem to me that they'd learned anything in their ethics class!" Similarly, a New York state requirement that students certify attending no less than 90 percent of their classes leads many to lie--and learn in the process of lying works.
Whether the schools themselves actually practice what the Rules preach is yet another issue. That members of the bar have a positive duty to provide their services to those unable to pay is a hoary tenet of the profession, yet students complain that school placement offices are little more than funnels to corporate and big-firm jobs prestigious for the schools, lucrative for the graduates. "I don't think they even look at any firm that doesn't have six names on it, much less provide us with information on non-profits," one student grouses. Slanting the placement process toward "the biggest, strongest firms" assures students end up believing that "this is not a profession in which you can do anything more than corporate work" and that pro bono is only for kooks.
Another Pipkin study, conducted in 1976, showed that the closer students moved to lawyerhood, the more disaffected they became with their three-year rite of passage. Ethical standards sown late in law school, Pipkin implied, might not take in the inhospitable soil of hardening disdain.
At the University of Pennsylvania and West Virginia law schools, among others, legal ethics has been moved up to the first year. "If it's so important," students asked, "why teach it to us on our way out?" Many professors would agree. But first-year students fresh from college have a tough time seeing the rules as anything but one more set of abstractions to be mastered intellectually, or at least memorized. They rarely sense the subtleties of ethical dilemmas, nor have they yet developed much feeling for the interplay between legal strategy and professional responsibilities. they too often are, as one student complained, "discussing ethics in a vacuum" of inexperience. Unfortunately, too, first-year students may find themselves in a double bind, being taught in their regular courses to jettison personal values and think like lawyers, while warned in ethics class that thinking that way may get them into trouble.
Because of its unique structure--two weeks of total immersion between semesters--Penn's first year course has taken some shots. "The program could have been good and useful," said one student, "but it was not in the right place, either in the year or in our lives." The course was too canon-bound and "very accepting of the status quo," they complained. One found nothing helpful in dealing with the performance pressure and conformance pressure" generated in the real world of practice. "I don't anticipate pressure to egregiously violate standards," he said, "but I do anticipate peer and competitive pressures to cut pro bono, to work for unsavory clients. i expect episodes where younger associates will be hung out to dry by senior people [covering their own mistakes]."
That such dissatisfaction is not reflected in post-course student comments is evidently not unusual. According to Pipkin, schools often end up thinking the course is being taken more seriously than it is. "God forbid you should get "Outstanding" on your transcript for an ethics course--you'll never get a job in New York." So runs the joke at Penn--and probably at most other law schools.
Whatever the fate of Penn's mini-course, there is a valid argument for at least introducing students to professional responsibility their first year; otherwise, as Harvard's David Wilkins notes, "lots of habits of mind and assumptions get set about what's important and what's not." Dean Michael Kelley of the University of Maryland Law School finds his first year law students take the subject far more seriously than do upperclassmen. But here the degree of interest has less to do with course positioning than with student age. Maryland's day division, packed with newly minted college graduates, does not take professional responsibility until the third year; evening students, whose average age is about 30, are exposed to it first year, largely because of their greater responsiveness. Those with little or no work experience, the reasoning goes, need a firmer grounding in law before tackling its ethical subtleties. The older the students, the more life and work experience they have amassed, the more self confidence they may have stored up, and the more compelling they may find issues of professional ethics. Partly it's a matter of maturity. Partly it's the likelihood of their having already seen how a seeming abstraction, like an ethical-dilemma, can attain devastating concreteness in the real world.
For some professors, the ideal world would be to teach the subject about three years after graduation, or rather, to reopen discussion on it. A few are, in effect, doing just that. Georgetown's Sherman Cohn is president of the American Inns of Court, a voluntary organization of judges, senior lawyers, and law professors that was organized in 1880. Open also to third-year students and younger lawyers, the AIC pairs its inexperienced younger members with older litigators and even judges on teams that regularly present demonstrations on ethical and advocacy issues. This master-apprentice relationship is designed to foster professionalism and skills in litigation, but it also serves as a vehicle for analyzing ethical dilemmas. (See Legal Aids, Student Lawyer, December, 1989.)
Since 1980, when his critical overview of teaching legal ethics, appeared, Maryland's Dean Kelly has seen a number of changes in the field, chief of which are the subject's increasing respectability, burgeoning scholarship, and increasingly innovative teaching materials. There has even been some expansion of what the subject of "professional responsibility" means, with such issues as the "corporatization of law practice" making their appearance. It is not simply big-firm operations, he continues, but "the way in which organizations have become dominant in defining [lawyer's] work, style, and how they approach problems." Those who do not understand the business of practicing law fail to comprehend the pressures it can engender, including pressures to violate fundamental values. "If you stick with the codes," Kelley remarks, "you're off in Never-Never-Land compared to what is out there" in the brave new world of law practice.
Another major change has been the infusion of ethical issues into such teaching vessels as moot court and legal clinics. Of much greater impact than any course on professional responsibility, Kelley believes, is Maryland's mandatory pro-bono program in the first (for representation in court only) and second years. No classroom lecture about the obligation of accessibility packs the visceral punch of having to deal with indigents and their problems.
Yet while clinical programs increasingly encounter ethical issues, whether they handle them well is another issue. Critic Robert Condlin argues that throughout law school students are too often "drilled in technique and have to fill in the background themselves when it comes to how this relates to justice." Unless they are helped to gain an understanding of their own motives, he cautions, students may be learning not only how to represent but also how to unethically manipulate clients.
David Luban, scholar of philosophy who divides his time between the University of Maryland School of Law and its institute of philosophy and Public Policy, briefly assayed teaching professional responsibility as a course in applied philosophy. That didn't work. "Student anxiety over the MPRE was too great," he recounts. "They panicked and wanted the rules." As a colleague at Maryland notes: issues of morality are timeless. They never get resolved, and this makes people uneasy, especially law students. That's strong pressure to reduce everything to simple declarative sentences."
understandably, this makes professors bristle. "The relationship between a properly taught legal ethics course and the Multistate is like the relationship between constitutional law and a game of stickball," says Gillers. Yet some still report being pressured to reduce their course to the lowest level of student expectations. "Students damn you either way," another professor notes. "If you just go through the rules, they think it's boring; if you don't there's all this anxiety."
Its not difficult to comprehend why students feel resentful, angry, and even threatened. "Sometimes they subscribe to things they haven't fully questioned," explains Condlin. Exposing these views to scrutiny "in a nonsecure environment of fifty or sixty students who are mostly strangers" is tough. Perhaps worse, Condlin believes, even while seeking entry into the profession quite a few students endure society's critique of it as morally bankrupt and feel too threatened by the conflict within to welcome opportunities for introspection. In fact, everything in law school militates against introspection, Condlin argues, because students are essentially being trained in "trying to fulfill an impossible set of role expectations," and soul-searching would only undercut that process.
Yet part of being a lawyer, says University of Detroit professor Lawrence Dublin, "is to use your skills as a human being. You have to cultivate these rather than suppress them." Accordingly, there is a discernible movement away from simply teaching the Rules of the law of lawyering, a movement toward bringing in issues that affect one's personal as well as professional life. Students formally evaluating Penn's program gave highest marks to the few sessions that dealt with work and family issues out of the many that focused on a lawyer's particular role obligations.
At Harvard, David Wilkins teaches a four credit course that combines professional responsibility with the sociology of practice and survival technique. As a colleague put it, Wilkins "lectures on topics like, How to get t three-week Vacation, or "how to Do all the Pro Bono You Want, but the message is basically the same." That's right, Wilkins says: "There's a tremendous feeling of powerlessness even among the most privileged law school students. My part is to teach them they are not as powerless as they think." They're skeptical at first, he adds, but he tries to convince his students that learning how to "think strategically" applies not only to managing a case but to making sure both personal and professional lives are balanced and fulfilled. "If you want a three week vacation you tell the firm one year in advance when you're leaving, you buy nonrefundable tickets, you tell everyone you're taking assignments from that you are going away--and you stick to your guns." It's the art of planning.
Another movement is toward employing unorthodox materials in teaching. There are more and better casebooks on legal ethics, yet these frequently take a back seat to clips from "L.A. Law," and "All the King's Men," Harvard's Wilkins shows episodes of "L.A. Law" not only to highlight ethical dilemmas but to lead his class into examining what chords of popular perception the show touches. "The way to engage people into thinking about ethics is to give them stories--not rules, not abstractions," says Jim Elkins, who teaches at West Virginia University College of Law. New York University's Stephen Billers echoes: "The more we can stimulate or incorporate a story in which the student plays a role, the better the course."
Some prefer their stories nonfictional. Lawrence Dubin found that students looked upon disbarred attorneys as "aliens," while texts ignored the damage wrought by professional misconduct. To humanize those on both sides, he made a series of videotapes. For "professional misconduct," Dublin interviewed shell-shocked clients victimized by their lawyers; for the better-known "What Went Wrong?", he turned the camera on four disciplined attorneys talking about how it felt to learn of a grievance filed, or be forced to send notices of suspension to clients by certified mail. Penn has invited recovering alcoholic attorneys to address its classes. Sherman Cohn of Georgetown opens his professional responsibility course by reading the Virginia Bar's annual account of disciplinary actions.
One of the more ambitious programs in developing innovative teaching materials is underway at Penn's Center on Professionalism, which writes and produces professionally-acted videotapes based on case composites, each introducing a host of ethical issues. One by one the tapes show often well-intentioned lawyers becoming entangled in professional messes of their own making, with phony news stories and TV broadcasts often used to dress a case in verisimilitude. What truly sets these apart, however, is that they are designed not merely for students, but for law firms, bar associations, and CLE courses. Indeed, it is usually by practicing lawyers that the tapes are most warmly received.
Another experimenter is Jim Elkins, who practiced law in Washington, D.C. before taking up teaching. After trying unsuccessfully to use student journals to cultivate internal dialogues on ethical issues, Elkins shifted to loosely-structured writing exercises that invite drawing freely upon extraneous materials. Writing up their reflections on issues surfacing in the course seems to get the students emotionally as well as intellectually engaged: "They start taking stances," Elkins says "Some become enraged by what their colleagues reveal they would be willing to do.... We have these ongoing, painful, sometimes exhilarating, sometimes confused discussions about what lawyers do and whether they are morally accountable for doing it." For a number of students, the course raises new doubts about whether law is right for them. "If they're affected that strongly," Elkins reports, "it means they have the kind of sensibilities I'd like to see stay in the profession."
Like many schools, west Virginia uses the Armani-Belge case, which involves two lawyers who refuse to reveal the deaths of two women killed by the lawyers' client. Students find the case exceptionally disturbing, often desperately seeking "middleground solutions" or wishfully rearranging the facts. While using the case to illuminate client confidentiality, however, Elkins also teaches the principle of open civil disobedience and the occasional need to violate a rule deemed illegal of immoral.
Temple Law School has inaugurated an experimental "integrated program" that utilizes small classes and extensive role-playing. Limited to about one third of the second-year class and using NITA-based curriculum, the program runs evidence and trial advocacy concurrently in the fall and trial advocacy and professional responsibility in the spring. Students hear MPRE-oriented lectures on ethical issues in their sections, but for trial advocacy the course breaks into smaller units capped at twelve students each.
In the course of a fourteen-week term, participants try nearly a case a week, including several disciplinary hearings, criminal jury trials, and a legal malpractice case. Each case has built in ethical quandries; most are heard in a Philadelphia City Hall courtroom before a real judge and jury (often first-year students). In a simulated professional context, teachers find it easier to put their points across because students can see issues in action.
Even here, however, professional responsibility as a class does not garner the student attention other classes get. But its linkage to trial advocacy forces students to grapple with the ethical issues raised, because they are graded not only on their litigation skills but also on their handling of ethical dilemmas. Even those not playing counsel roles might end up writing the proposed findings, or a disciplinary board opinion. There's no benchwarming. Besides, the trial format injects a seriousness of purpose no class can match. "You might risk being unprepared for class," says student Anthony Martignetti, "but you'd never risk it for trial." The integrated program also has one very important hook: an overnight reputation for turning scared students into whiz trial lawyers. "It really deepens your understanding of the process," Martignetti says. "I know that my knowledge of evidence is far better than those who didn't take the program."
Does Temple's new program venture much beyond the Model Rules? "We don't do enough of it," says Professor Edward Ohlbaum, head of clinical education, "but we do it.. When a student gets up there and, overzealous, misrepresents a client, we can see it and discuss it." It's harder to gauge the appropriateness of zeal "when you're dealing only with cold case law." Students who have engaged in intensive role-playing in other professional responsibility courses often find this the class's most vivid experience, for it confronts them with the disparity between ethical thought and ethical behavior. The down side, in Temple's instance, may be that they are confronting it within the almost exclusively within the context as the lawyer as advocate. It may be inherent in their format that issues raised by other lawyerly roles go unexamined.
Are course in professional responsibility making a difference? "I'd like to think they are, but from what I've seen out there, I doubt it," says Ohlbaum. Like many others, however, he's encouraged that former students, now out in the real world, "call to ask if their ethical compasses are still pointing in the right direction." On the other hand, he notes, there is still a minority out there "who don't have the faintest sense what this is about, or who pay scant attention and don't care."
It is virtually impossible to gauge whether professional responsibility courses are resulting in more ethical decisions in the legal marketplace--or simply in clever covering of tracks. Certainly bar organizations report a tremendous increase in the volume of ethical inquiries received in the last few years, but does this reflect a greater awareness of the pitfalls, or a growing number of pitfalls? Jethro Lieberman, long critical of lawyer mores, wonders: What is it that you can point to that says we're doing anything differently these days? If you look at disciplinary counsel reports, it's the same old stuff--Dickens could have written it." Perhaps, he suggests, the present ethical--or unethical--climate is more influenced by an influx of "Me generation" practitioners and by the profession's rampant growth than by two-credit courses in ethics.
Law professors would like to think they're making a difference, but as Jim Elkins points out, how much impact they have is difficult to ascertain because "the pressures to sell out have increased--we've upped the ante so substantially." To avoid the Faustian bargain, a lesson some are teaching is to derive no more than 15 percent of your business from any one client--so you can walk if asked to check your integrity at the door. Sturdy hiking boots are also recommended.