Geoffrey Hazard, chief architect of the Model Rules of Professional Responsibility, cautioned that the Model Rules should be understood as “a code of legal standards, not ethics.” Geoffrey C. Hazard, Jr., Rule of Ethics: The Drafting Task, 36 The Record 71 (1981). The Preamble to the Model Rules also makes clear that the Rules do not provide everything a lawyer needs to resolve ethical dilemmas. The lawyer must also rely on not only “personal conscience” but also “sensitive professional and moral judgment.” Indeed, the Preamble acknowledges that all difficult ethical decisions arise from a conflict between the lawyers duties to the client, to the legal system, and to “the lawyer’s own interest in remaining an upright person.” Anyone who thinks that the Model Rules by themselves should serve as a lawyer’s sole guidance for making ethical decisions is, therefore, mistaken. The Model Rules set a minimum threshold for conduct that will avoid discipline. For the many areas left to the lawyer’s discretion, the Rules give little direction.
The two influential 2007 publications—Best Practices for Legal Education and the Carnegie Report’s report–noted that focusing exclusively on the Model Rules misleads law students. The Carnegie Report put it this way: “When legal ethics courses focus exclusively on teaching students what a lawyer can and cannot get away with, they can inadvertently convey a sense that knowing this is all there is to ethics.” Both Carnegie and Best Practices challenged law schools to help students cultivate a professional identity—an internal sense of values and principles they will integrate into their professional life. Doesn’t that sound like the “personal conscience” to which the Model Rules’ Preamble refers?
If we accept the recommendations of the 2007 reports and want to help students cultivate an ethical code and to develop a method for resolving ethical dilemmas, the challenge to legal educators is in finding teaching methods that do so. I coauthored an article—http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2414015—that explored teaching practices for developing both professional identity and ethical decision-making. Many of the proposed methods come from my and my coauthor’s classroom experience. The article also offers approaches used by other legal educators and even by teachers in other disciplines (e.g. medicine). To date the most effective method I have found is the series of reflection papers described at pages 398-406 of the above article. The approach involves a series of assignments in my Civil Pretrial Practice and Procedure course. The course materials provide “gray area” situations in which a particular course of action gives an advantage to the client, at the expense of undermining the legal system or compromising the lawyer’s integrity. The course syllabus requires students to prepare reflection papers in which they: (1) describe the conflicting interests and values; (2) discuss all Model Rules at issue, as well as at least one other pertinent source addressing the ethical issue; (3) talk to a mentor, identify the mentor, and recount the conversation with the mentor about the issue; (4) in light of steps 1 through 3, describe who will be affected by the different potential courses of action and how the person or entity will be affected; and (5) form an opinion as to the issue in light of all of the considerations.
Why bother with all of this effort, some ask, if evaluating the client’s interests, curbed only by the Model Rules, allows for quicker decisions? The full answer to that question is for another blog post. For now, consider this: growing evidence shows that lawyers who make these decisions without reflection become increasingly disillusioned over time. Those who wrestle with ethical decisions are more likely to respect themselves and be respected by their peers. Is personal integrity worth the struggle? I leave that question for the students. But I’m satisfied that we are developing teaching methods that will give students a framework for the process. Although they will need to practice making these decisions to develop the judgment we admire in the best lawyers, the presence of a framework will advance their maturation as ethical lawyers.
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