Rule, Story, and Commitment in the Teaching of Legal Ethics

The ABA requires each approved law school to provide each student instruction in the duties and responsibilities of the legal profession. First adopted in August, 1973, in the midst of the Watergate disclosures, this requirement has never been interpreted and is infrequently referred to or enforced in the accreditation process. The professional responsibility requirement is the only substantive teaching requirement imposed by the ABA. Should the ethics teaching requirement be scrapped? We consider that question in Part I. Although we ultimately conclude the rule should be maintained, we believe this fundamental question must be asked. Given the disdain many legal academicians have for legal ethics, 19 we find it more than a little curious that no one has suggested abandoning the requirement. In this Article we ask the question that the skeptics have failed to ask. In the process we will examine the paradox they have created by failing to suggest the elimination of a requirement that they are so willing to scorn. After concluding that the ABA and law schools should require ethics instruction, we turn in Part II to the questions of what is appropriate subject matter for ethics courses and when they should be taught. We emphasize the nature and importance of rule, story, and commitment throughout this Part, as we do throughout Part I. With Geoffrey Hazard we co-authored a casebook on legal ethics and the law governing lawyers. Thus our view on what should be taught will not surprise people familiar with that book. \u27 In Part II we try to make explicit what is implicit in that other work-the reasons we designed our book as we did and the lessons we hoped to teach through the material we included. We also address the question of when students should learn what concerning legal ethics. We conclude that some first-year instruction is important, but that, after the first year, an additional ethics course is also necessary. The required courses should be supplemented with a well-designed and deliberate effort to-teach ethics through the pervasive method in upper-level courses. Finally, in Part III, we turn to the question of who should teach legal ethics, a neglected topic within which commitment and character loom large. Although the silence on whether ethics should remain a required course is somewhat unexpected, the silence on what kind of person should teach legal ethics is all-too predictable and, at the same time, enormously problematic. The subject that dare not speak its name within the walls of the academy is the character of academics. We believe nonetheless that we must discuss the character of those who purport to teach ethics, indeed the character of those who purport to teach anything, and so we end by speaking of character and apologize in advance if we offend anyone by mentioning the unmentionable

Legal and Ethical Duties of Lawyers After Sarbanes-Oxley

This Article examines the legal and ethical duties of lawyers after Sarbanes-Oxley, focusing on the application, interpretation and ambiguities of the SEC rule implementing Section 307. Although our primary frame of reference will be on the SEC\u27s new rules as an aspect of lawyer regulation, those rules are part of federal securities laws and should be considered in that aspect, i.e., whether they advance the purposes of the federal securities laws. The rules affecting lawyers should not be assessed in a vacuum as a mere turf war between federal regulators on the one hand and the organized bar and its state regulators on the other, although that is one relevant aspect. Federal securities laws exist to protect investors, largely through compulsory issuer disclosure. The SEC exists for this purpose. Its rules, including the rules governing lawyers, must be evaluated in light of this overarching purpose. In our view, this purpose, and the SEC\u27s rules, are largely consistent with what a prudent lawyer, representing an entity client, would do both for the good of the client and for the lawyer\u27s own risk management. The bar\u27s discomfort with the rules measures in large part the degree to which everyday corporate practice deviates from what one would expect from a prudent and faithful entity agent

Legal and Ethical Duties of Lawyers after Sarbanes-Oxley

This Article examines the legal and ethical duties of lawyers after Sarbanes-Oxley, focusing on the application, interpretation and ambiguities of the SEC rule implementing Section 307. Although our primary frame of reference will be on the SEC\u27s new rules as an aspect of lawyer regulation, those rules are part of federal securities laws and should be considered in that aspect, i.e., whether they advance the purposes of the federal securities laws. The rules affecting lawyers should not be assessed in a vacuum as a mere turf war between federal regulators on the one hand and the organized bar and its state regulators on the other, although that is one relevant aspect. Federal securities laws exist to protect investors, largely through compulsory issuer disclosure. The SEC exists for this purpose. Its rules, including the rules governing lawyers, must be evaluated in light of this overarching purpose. In our view, this purpose, and the SEC\u27s rules, are largely consistent with what a prudent lawyer, representing an entity client, would do both for the good of the client and for the lawyer\u27s own risk management. The bar\u27s discomfort with the rules measures in large part the degree to which everyday corporate practice deviates from what one would expect from a prudent and faithful entity agent