James Fischer on the Difficulties of Teaching Legal Ethics

[Professor James Fischer of the Southwestern University School of Law guest blogs on the challenges of teaching legal ethics.]

For almost 20 years now I have taught "Legal Ethics." It is my favorite course even as I have no illusions that my students share my fondness for the course. A true case of unrequited love. Law students are not alone. Among practicing lawyers, the annual requirement to complete several hours of legal ethics as CLE generates more animosity than the CLE requirement itself – a feat in itself. Why is "Legal Ethics" the Rodney Dangerfield course in law school? It just can’t get no respect.

I’ve run through all the reasons given: (1) students lack real world experience; (2) the course is just a bunch of rules that lack a unifying theme; (3) course is warmed over moral pabulum; and so on. None of the reasons explains the especial student antipathy towards legal ethics. At one point I tended to accept an Economics 101 view of the problem: students attitude reflect the fact that the market does not reward top performers. Which grade would a hiring partner prefer: an "A" in Antitrust or an "A" in Legal Ethics? But in the aftermath of ENRON and WorldCom and the development within many law firms of professional compliance departments, I’m not confident that the marker really devalues expertise on professional responsibility, if it ever really did. In any event, I bring in speakers who extol on the importance of legal ethics and, judging from the student evaluations, that part of the course seems to have some traction. Nonetheless, the general student attitude towards the course continues to fluctuate somewhere between indifference and avoidance.

My current explanation is that Legal Ethics requires something other courses do not—personal introspection. This is not to suggest that other law school courses do not require students to explore their values, but Legal Ethics requires students to address their core personal values and, most importantly, do so openly. I believe students rather quickly perceive this and react in a passive/ aggressive fashion to avoid the conflict. Let me give two examples.

Several years ago I had a student who was reciting on a Legal Ethics staple—the client who wishes to make a "bad" decision and one the client would likely regret later. The hypothetical involved a defendant who was DUI and involved in an accident, which resulted in the death of his fiancée. The prosecution was for involuntary manslaughter, the case had a good legal defense, the prosecutor would likely agree to a favorable disposition at worst, but the defendant wanted to plead guilty out of remorse and guilt. What to do? The student insisted the lawyer’s role was to guide the client to the "correct" decision, which for the student was to plead "not guilty," to defend aggressively, etc. The student, in the role of putative lawyer, would not allow the client to plead guilty. Sentiments that I recognized I had held as a young lawyer and, perhaps, still do. Sentiment that are also held by large segments of the bar.

I changed the hypothetical. Did I mention that the student was a young woman? I asked her to assume that she went to her OB-GYN for a regular physical. During the physical, the physician determined the student was 8 to10 weeks pregnant. The physician feared, however, that if he told her about her condition now she would make a rash choice—have an abortion, a choice the physician personally opposed. Rather, the physician simply told her to schedule another appointment for 6 weeks hence to follow up on some tests the physician wanted to run. How would the student react to that approach? Well the student was indignant! It was not the physician’s responsibility to decide matters personal to the patient, etc. Then the student paused. You could hear a pin drop in the classroom. I thought, at the time, it was one of those magical classroom moments when students saw the conflict between professional knowledge and layperson autonomy. It was a good instructional moment, but it was not costless.

A second occasion involved a negotiation problem I had students perform against each other as lawyers representing opposing parties. The students had confidential information sheets that they could use in reaching a settlement. I posted the results and began to question the students who had done poorly and who had done well. During the discussion it became apparent that one of the students, who had done well, had also engaged in shall I say, "substantial exaggeration"? For this he took substantial flack from his classmates. Again, I thought at the time, a good class, but as I later found out, not costless.

The female student, who up to that point in time has been a regular class participant, did not speak again that semester. A number of students wrote in their course evaluations that the incident had been personally embarrassing to the student – a point she later confirmed when I spoke to her about it after I read the evaluations. The student who had been caught "exaggerating" came to see me after class. He was somewhat indignant that his negotiating "strategy" had been exposed in class. He felt that absent the in class post-mortem his reputation would not have suffered because no one would have known what he did. Like the female student before, he did not participate in class again that semester.

So what to do? Students gauge that the safest course is to spout the company line. If the court says what lawyer X did was unethical, then so it is and every student in the class will defend the result eloquently in the language of the court. If a court finds that the lawyer acted unethically, well that’s correct to, as just as eloquently defended. Do students believe what their saying? I sincerely doubt it, but it’s become impossible to get them to address the core issues in areas where they believe that their person values may be questioned. A last example. One semester recently I had the students read the Colorado Supreme Court’s decision In re Paulter. Paulter was a prosecutor and reserve police officer who was found to have engaged in deceptive conduct for impersonating a public defender as part of a law enforcement ruse to capture a violent suspect. As expected all of the students in the class agreed with the Colorado Supreme Court. Question directed to exploring whether any of them would do what Paulter did were met with denial. What about the fact that the suspect had raped and murdered several women? No, the court was still correct. What about the fact that the suspect was still at large? Same answer. What about the fact that the whereabouts of the suspect were still unknown to the police? Same response. About this time I heard a student in the front row mutter sotto voce that she thought Paulter was a "hero." Interesting comment. This time, I let it pass without comment.

Comments

[SupremacyClaus]

Legal Ethics is not ethics.

It is cult enforcement of compliance with its ends, enrichment and tyrannical domination. The system protects people who have paid the lawyer a fee. So commingling of funds results in the immediate death penalty for the career, alcoholism impairing performance, etc. This protection enhances confidence and generates business.

In many states, the disciplinary counsel (DC) is a prosecutor that works for the State Supreme Court, i.e. an executive officer, with all immunities and discretion, but zero accountability for damages from malice or negligence. The DC is not subject to the Rules of Conduct in the course of its duties. Why? This prosecutor works for the judiciary. If anyone has challenged the Constitutionality of this violation of the separation of powers, I would appreciate the legal citation. I am not holding my breath.

These judicial cappi di tutti cappi act like a Regional Mafia Commission, accuser, judge, jury, executioner, to impose order.

DC paycheck comes from fees collected involuntarily by the Bar Association from the objects of its investigation. When a lawyer dissents from cult doctrine, it is destroyed by the dog of the cult, the DC. The lawyer, no matter how bright, rich, and slick, finds, as the public has, there is no recourse. On the other hand, the fee pays for protection from any accountability to the public, especially adverse third parties. Watching The Sopranos is helpful for understanding the organization of this structure.

A little hostility from the victims of cult orthodoxy is not surprising to other victims of the CCE in charge of 3 branches of government.

[supremacyclaus]

Prof. Steele: The lawyer or student lawyer is like a fish in the sewer, oblivious to the water. Knowledge of fresh air above is completely out of the question.

What is the most elegant explanation for coercing a client who wants to do the moral and right thing, by confessing, into pleading not guilty? Fees. What is the fee if he confesses, if he pleads not guilty?

Why break the rule against using adverse party confidential information or lying in negotiations? Fees, and future fees from reputation from achievement.

Rent Seeking is the Grand Unifying Theory of lawyer decisions, from lowly public defender to Supreme Court Justice. Liberal, conservative, realist, idealist, feminist, racist. All "isms" are masking ideology. No "ism" will break the rule of Rent Seeking. That is a subsidiary, but immutable principle.

Not "company line", "cult orthodoxy."

[Brad Wendel]

This is probably as good a place as any to repeat the observation that there are many different subjects going under the heading of "legal ethics." One version of the subject is the law governing lawyers, which is made up of not only the state bar disciplinary rules, but also of all other regimes of law affecting what lawyers do in the course of representing clients -- evidence (attorney-client privilege), agency, tort, criminal (obstruction of justice, perjury), constitutional, contracts (fee agreements), securities, etc. Teaching that version of the subject isn't particularly difficult, because it looks and feels like other law school courses -- the students read tons of cases, parse out the holdings, run the rules through hypos, yadda yadda yadda. I use the Hazard casebook, which is also reassuringly familiar to students.

To the extent a teacher wants to engage with "real" ethics, as Prof. Fischer suggests, it becomes a much more difficult teaching task. One way to deal with real ethics is to teach it as a branch of moral or political philosophy. That's not warmed-over moral pabulum -- it's a rigorous academic discipline, although one that not all law teachers have advanced training in. Teaching legal ethics using the tools of academic moral philosophy isn't particularly hard, though, at least if the students are on board for the task of slogging through philosophical texts and analyzing arguments. Here also you have texts to refer to, so the students' own moral choices aren't under the microscope. But one of the biggest downsides to this approach is adopting a third-personal standpoint on ethics, and looking at the subject as a phenomenon to be studied, not an activity to be engaged in. It misses the introspective dimension identified by Prof. Fischer.

Prof. Fisher's course seems the most challenging of all, because he tries to get the students to imagine themselves inside the subject, making ethical decisions where the law doesn't provide much guidance. Also, there are no texts to refer to, so students cannot claim to be simply offering an exegesis of Luban or Simon, and have to commit to offering their own views. His suggestions seem right on -- bringing in guest speakers, for example, helps avoid the students' habitual recourse to the imagined morals of the marketplace (e.g. the assumption that clients always want them to go all out, and are resistant to hearing non-legal ethical advice).

In the end, I suspect there's only so much introspection you can demand of anyone. It's tiring, and Prof. Fischer is right that being exposed in front of classmates is uncomfortable. My own approach is to teach a hard-core law-of-lawyering course, which looks very much like any other law school course, but to intersperse some occasions for reflection. Those moments are sometimes awkward, but their relative infrequency and the contrast with the rest of the course tends to make them memorable.

[Laura I Appleman]

As a future legal ethics prof (I will be teaching the course next spring), I wonder if trying to utilize more actual ethics dilemmas would make the course more interesting and alive for the students. For example, I practiced as a public defender for five years, and I plan to use some of my own ethical dilemmas during that period of practice to help enliven what can be a dense course.

Certainly I recall my own legal ethics course being somewhat less than inspiring--ironic, considering I am excited about teaching it next year. But in beginning to prepare for the course, I can see how difficult it is to teach! I am planning to use one of the standard textbooks, either Hazard or Simon, to help structure the course, with some handouts and possibly one or two of my old cases to jazz it up a bit.

[SupremacyClaus]

Prof. A: If in preparing the course, you happen on an exception to the Rent Seeking-Cult Empowerment Theory, please, share any case, any rule, any commission report, any opinion piece, any letter to the editor, any off hand remark by a lawyer overheard in an airport waiting area, any exception whatsoever. Also any case of sanctions for the filing of a frivolous lawsuit, any action protecting an adverse third party from lawyer abuse would be much appreciated.

Lincoln, Mr. Please Do Not Sue Your Neighbor, does not count. He solved the disagreement between the states with a War Between the States, still the deadliest and most nauseating lawyer malfeasance in American history. His credibility is tattered a bit. Along the way he did Rent Seeking, really big time. He exploded the size and power of his last client, the Federal Government. If one looks to a nation standard of due care, no other nation ended slavery by war or by exploding the size of government. Haiti might be called an exception that clinches the sickening analysis of duty.

http://news.bbc.co.uk/2/hi/africa/3589646.stm

Lying lawyer propaganda somehow elevated this mentally ill, impaired bumbler to sainthood.

[Tigran Eldred]

As a former public defender, current teacher of Lawyering and (hopefully) future PR professor, I found this post fascinating. Three quick thoughts about the issues posed by the author: 1) were the students put on notice that their personal values (and choices) would be exposed to the class for discussion? If not, perhaps it was the unanticipated exposure, rather than the students' disinterest in discussing these issues, that caused their subsequent silence in class; 2) in my current program, I find that discussions of personal ethical choices are more resonant in small critique sessions rather than in large class discussions; 3) would students feel less threatened, and thus more willing to expose their interior selves, if the process was reciprocal -- in other words, if the professor submitted himself to similar questioning about such difficult issues? None of these thoughts are meant to diminish the pedagogical difficulties expressed by the author, which seem very real.

[DBS]

I appreciate the insight that teaching legal ethics as an area of substantive law is different from teaching legal ethics as a branch of moral or political philosophy. This comment applies to the latter. There are (at least) two general approaches to teaching moral or political philosophy. One is for the professor to explain the different possible positions, the most plausible arguments for each, and to characterize the nature of the dispute (often this means clarifying which controversial premises are at the root of the disagreement). Input from students on this model is carefully guided by a skilled professor to elucidate the points he walked into the room planning to make. The primary goal is to leave students with an accurate understanding of the most important positions, principles and issues. I take it from the tone of the post, that this is more limited than the approach the Prof. F. had in mind.

Another approach is to use the discussion of different positions and arguments to teach students how to reason through complex ethical issues. Teaching them the particular subject matter on the syllabus is a means to an end. If this is the goal, the harshness of the version of socratic method associated with teaching law is often counterproductive. It is quite likely that the female student discussed above could have developed a coherent explanation for why she maintained both that a public defender should try to convince his client not to plead guilty and also that a doctor should not withhold from a pregnant woman he thinks should not have an abortion the fact that she is pregnant. If the idea was merely to drive home the point that her position on the legal ethics question has implications for other ethical questions, the strategy worked well. Another way to say it is that it worked well if the point was to teach the class about a potential weakness in that position.

If the point is to teach students how to reason through ethical questions, the strategy was less than ideal. If the student had risen to the challenge, and refined or clarified her position in response to the new hypo, eventually arriving at a more well-considered position, it would have been perfect. However, many students are not comfortable enough or skilled enough in that style of interaction to stand their ground. The hypo wasn't complete, but from what we know she may have had no problem with the attempt to persuade in either context, but would object to withholding relevant information in both. Or perhaps her position was inconsistent, but if she had not felt humiliated she would have refined it until it was. It might have helped to probe her reasons before introducing the new hypo. Or maybe it would have helped to warn her that you are about to raise an example that people tend to have conflicting intuitions about, so she would be less likely to blurt out an embarrassing response without thinking about it first. That would, of course, be less dramatic. If the point is to teach people how to reason through ethical issues, there is no getting around the fact that you are asking them to expose themselves. You can't help but notice when a person has weird moral intuitions. The process cannot work if you leave the class with the impression, however inaccurate, that you are insulting them rather than working through problems with them. It is crucial that students understand from the outset both the type of questions you will ask and the purpose of asking them, because this process is impossible without challenging premises, posing counterfactuals, and raising the possibility that some of a person's dearly-held moral views may be inconsistent. Teaching people how to reason through ethical issues is very hard, and it requires sensitivity and wisdom as well as intelligence and knowledge. Okay. I'm done.

[SupremacyClaus]

1) In the history of lawyer ethical education, has any professor brought into class any victim of lawyer abuse and incompetence, the human side to lawyer devastation? For example, 75% of civil suits lack merit. About 20% of people on death row are found to be innocent. Only 1 in 100 FBI Index Felonies results in any consequence to the criminal.

2) In the history of lawyer ethical education, has anyone questioned the self-dealt immunities of imperious, tyrannical, pro-lawyer cult biased judges, of lawyers immune from adverse innocent third party damages, of prosecutors? The latter not only are immune from accountability for mistakes, but also for refusing to do their work, leaving civilians helpless against an onslaught of massive criminality, many times higher than in some other developed countries. This is massive conflict of interest.

If anyone has ever experienced such a teaching session, please, describe.

[Harry]

Is this the same James Fischer who taught in Alkabo, North Dakota in 1955 or 1956?

[yuwanita candra kirana]

I think it is very difficult in teaching reading text! According in my experience I dont know how the way to teach the students for reading! Beside that there is no motivation for students in reading lesson. Most of them are not interested on it. So now when I`m teach them, when they read a text I give the list of the difficulties below the text. It shows to make student easy to understand and comprehend the text.