I’ve been told by more than a few lawprofs, sotto voce, that full time academics hate teaching ethics, or professional responsibility as it’s called in some law school, as it’s considered beneath their intellectual dignity. They do so with a gun to their head, and a plan to get in and out as quickly as possible.
The baseline for law students is that this is a required course, to be endured on the path to lawyerdom rather than to learn what it means to be a lawyer, and how they are to comport themselves as lawyers in the future.
At PrawfsBlawg, Paul Horwitz writes about how he started his professional responsibility class this year. Apparently, he drew the short straw and got stuck with the gig, though Horwitz isn’t one of the profs who told me he despises teaching the course. Indeed, for all I know, this is his favorite course to teach, and he does so with fervor and flair.
We addressed some of these issues at the end of the semester, and that was useful in bringing things to the surface, but I thought the discussion ultimately came too late. This year, I decided to start with these issues. For some discussion by other legal ethics professors, see this post. (I had already decided to do so last year, so I don’t think the recent fusses over the Campos blog had too much to do with it. But like all of us, I sometimes don’t get around to doing what I plan to do, and certainly the recent discussions encouraged me to make sure it happened.)
Thus, on the first and second days of class, I assigned the students some non-casebook materials: 1) a link to the Campos blog (not the optimal source of information, in my view, but I wanted students to have a sense of the emotions and anger involved, not just the facts); 2) a link to my own discussions of that blog; and 3) a link to the William Henderson article in the ABA Journal about paradigm shifts in the legal profession.
For a solid hour and a half, we discussed a host of issues: why students came to law school and what they expected to get out of it; what they now thought; debt issues; whether students relied on bad information about job prospects, median salaries, and so on; what their own job prospects are; whether their opinions about law school, the legal profession, and their own future as lawyers have been altered or chastened; what they think are right or wrong with legal education in general, and Alabama’s law school in particular; and other subjects. It was a fairly no-holds-barred discussion, and the findings were interesting, though not wholly surprising.
For a solid hour and a half? Sorry, but that stuck out, reminding me of the old college test joke, “explain WWII, use both sides of the paper if necessary.”
What also stuck out is that this discussion, in light of what Paul Campos, the notorious scamblogger who has been vilified in the academy, has to say, was between law students and their professor, No power imbalance there. Nor is there much of a chance that law students would appreciate the nature of the problems they would face in the future, aside from obvious joblessness and debt, or the professoriate’ role in their lack of preparation to practice law.
Despite the inherent flaws in the design of this discussion, Horwitz came away with some interesting ideas:
[W]hat I found striking was the sense among my students, not that they would never receive a job in general or a legal job in particular, but of what that meant for them. They had never seen law jobs as a path to wealth, but now they no longer saw them even as a path to the relative security of the professional upper middle class.
We use the words “wealth and prestige” as a bit of a hyperbolic description of young lawyer’s vision of the “deal” they made when they entered law school, a means of explaining why they feel to badly treated, and hence justified in taking liberties with ethics. Horwitz’s description is more nuanced and, in reality, more accurate. It’s not about great wealth, but about a comfortable and secure future in the “professional upper middle class.” The price of admission is about $150,000 and three years of your life. It’s not too much to expect in return, is it?
According to Horwitz, one of the reasons he decided to move this discussion to the head of the class was something he spotted the year before:
I found that more students than usual tended to say they would choose an unprofessional or dishonest course of action, for fear in any given situation that they would lose their clients or their jobs.
This, of course, goes to the core of the course and what is required of us as lawyers. More importantly, this is what I’ve been seeing and writing about in the cadre of young lawyers who can’t get jobs and instead manufacture fraudulent internet personas designed to gain an income, whether in the law or the cottage industry of social media legal marketing.
And so I read Horwitz’s lengthy post to see what became of this trend toward the dishonest. His answer was to make a deal with the devil.
So I made a kind of bargain with my students. For my part, I have told them that we will continue to discuss these issues and to think about how they affect their views on legal ethics. I have also promised that I will serve as a conduit and an advocate, making sure that my colleagues and the administration know of their dissatisfactions and about the things they would like to see change. I have asked them in return to commit to the class: to do their best to ask seriously how they would act, and how they should act, in various professional responsibility circumstances, rather than simply disengaging from the class or offering pat or cynical answers, and to participate actively in class discussion.
My reaction isn’t quite disappointment, for that would assume that I expected something better. Rather, I found this to reflect the wholesale abdication of responsibility to impart the fundamental demand that lawyers act ethically and honestly. This isn’t a trade-off or a bargain. This doesn’t require law students agreement or approval.
As shown in comment to Horwitz’s post, other lawprofs were impressed with his efforts and blew him kisses, even though some trivialized the law students’ concerns as just typical law student griping. Some anonymous comments from young lawyers castigated his failure to address the elephant in the room, that law schools induce students to attend by fraudulent placement figures, thus creating an aura of fraud that the students carry forward into practice.
For my part, ethics and honesty are not a choice. They aren’t a give back for a lawprof who champions their cause, or even transmits their message. They are not negotiable. Ethics and honesty are the sine qua non of being a lawyer, and yet the lesson taught here is that they are situational or only required when students are satisfied that they were given value in return.
As I constantly ponder what bone in their head tells some young lawyers that they can fake it ’till they make it, fabricate their persona for the purpose of scamming a buck out of the unsuspecting, sell themselves by strutting down the boulevard in hot pants, it really hadn’t sunk in that they start with the message taught them in law school.
No wonder they laugh at old curmudgeon’s like me, who they say “don’t get it.” While taking a course in legal ethics may be required, having them no longer is.