Between Law and Virtue

Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both the areas of legal ethics and of professionalism are dynamic and both are a part of legal education and continuing professional education. Legal ethics and professional responsibility have been a required part of legal education since Watergate. Today, professionalism and professional training are becoming an increasing part of law school and post law school instruction. This article traces briefly the history of legal ethics in the United States and discusses the fundamental conflict that prevents aspiration and discipline from residing in the same space. Then it elaborates on the concept of professionalism and discusses current efforts to give content to professionalism for purposes of teaching it to law students and promoting it with lawyers

Between Law and Virtue

Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both the areas of legal ethics and of professionalism are dynamic and both are a part of legal education and continuing professional education. Legal ethics and professional responsibility have been a required part of legal education since Watergate. Today, professionalism and professional training are becoming an increasing part of law school and post law school instruction. This article traces briefly the history of legal ethics in the United States and discusses the fundamental conflict that prevents aspiration and discipline from residing in the same space. Then it elaborates on the concept of professionalism and discusses current efforts to give content to professionalism for purposes of teaching it to law students and promoting it with lawyers

Wanted: An Ethos of Personal Responsibility—Why Codes of Ethics and Schools of Law Don\u27t Make for Ethical Lawyers

This article: (1) argues that neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers; (2) asserts that ethics codes and the presuppositions of the adversary system work to alienate lawyers from a sense of individual responsibility; (3) critiques the conceptual connection between the adversary system and codes of lawyer ethics; (4) critiques the conventional approach to teaching legal ethics in law schools; (5) invokes the approach to ethical analysis championed by the German sociologist and social theorist Max Weber; and (6) explains how that approach, coupled with traditional tools of legal reasoning, can lead to an ethos of personal responsibility

Legal Ethics and Professional Responsibility in a Global Context

These remarks elaborate on legal ethics , more properly understood as professional rules of conduct. The paper examines three principles in particular: competence, faithfulness, and fair service charges. Finally, the essay describes the direction of the European Union as a model for the practice of law

What does legal ethics teaching gain, if anything, from including a clinical component?

In some law schools legal ethics have been taught very conservatively, focussed on the law of lawyering with a heavy emphasis on ‘professional rules’ and how to ensure solicitors and barristers behave within the professional rules. Others however have proposed different models for thinking about lawyering, lawyers’ ethical duties and the role of lawyers within the legal system.  In this article, legal ethics, ethical decision making and values are explored.  I ask what value can be gained by including a clinical component within a standard legal ethics course even when it is a short exposure experience.  I explore the range of meanings ascribed to ethics and professional responsibility, and the connection between personal and professional identities.  Finally using three vital elements within the definition of an ethical legal professional, I evaluate whether the clinical component contributes to teaching students about how to be an ethical legal professional.  I draw from the Best Practices of Australian clinical legal education to assist with this process, and discuss some additional learnings which students gain from seeing legal practice modelled for them in a community legal centre, located within a university faculty of law.  Some of the challenges of developing an effective clinical component are explored such as the importance of training volunteer lawyer supervisors and how to assess the learning by students.   The ways of sharing the individual learning across the student cohort is also a further challenge

Ethics and the Settlement of Mass Torts: When the Rules Meet the Road

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be resolved by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our legal system faces. I do think that mass torts present us with some novel issues that question the transsubstantivity of our laws and rules. While others in this symposium focus on the procedural and substantive issues raised by such cases, I will focus on the ethics of such settlements in two senses: First, at the level of professional ethics, I will examine what is ethically permissible behavior in the way in which such settlements are arranged. Second, at the higher, broader level of ethics, I will examine the nature of an ethically just or fair settlement. Although lawyer ethics are only part of the larger considerations of what makes a settlement ethical, the professional responsibility questions raised in recent mass torts cases reveal a bigger problem for legal ethics generally. This problem involves situations where rules are so ambiguous or self-contradictory that they cannot govern behavior clearly

Professional Responsibility: Education and Enforcement

The fallout from the Watergate scandals has had a profound effect upon the legal profession because many of the prominent offenders were attorneys. The severity of the conduct involved and the suspicion that the activities publicized represent merely the tip of the iceberg have caused the American Bar Association, state and local bar committees, and law schools to seek new ways of educating prospective lawyers with respect to their ethical duties, and to seek more effective sanctions against ethically deficient attorneys. It is ironic, however, that increased awareness and activity in the area of legal ethics should be motivated by Watergate, because no course in ethics, no better program of discipline, no keener awareness of moral issues would have succeeded in altering the conduct of the principle offenders where the criminal laws and their personal moral values failed to deter their activities. Nevertheless, the impetus to re-examine approaches to the teaching of professional responsibility and re-evaluate the principles and objectives of the governing rules of legal ethics should not be lost, for the legal profession\u27s record in the education and enforcement of professional responsibility has been unsatisfactory