[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.