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Pedagogy Without Purpose: An Essay on Professional Responsibility Courses and Casebooks
Published online by Cambridge University Press: 20 November 2018
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- Copyright © American Bar Foundation, 1985
References
1 The American Bar Association adopted the Model Rules of Professional Conduct in Aug. 1983, after lengthy debate. See Kaufman at 16. The Model Code of Professional Responsibility, adopted by the ABA in 1969 and amended several times (last in 1980), has been adopted in all states, in some form. Three of the major publishers of law texts have produced statutory supplements, containing all of the codes, which are bought separately and can be used in conjunction with these casebooks.Google Scholar
2 For an excellent discussion of the concept of role-differentiated behavior of attorneys, see Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975).Google Scholar
3 Schwartz & Wydick's book begins by stating that its purpose is to “introduce you to the rules of ethics that apply to lawyers” (at 1). The preface to the book (actually ch. 1, consisting of pp. 1–3) clearly states that its purpose is teaching students the rules contained in the codes of professional responsibility.Google Scholar
4 See, e.g., Model Code of Professional Responsibility Canon 7 (1980) (“A lawyer should represent a client zealously within the bounds of the law”).Google Scholar
5 See, e.g., id. at Canon 4 (“A lawyer should preserve the confidences and secrets of a client”); Canon 5 (“A lawyer should exercise independent professional judgment on behalf of a client”).Google Scholar
6 A superb description and critique of this view is found in William H. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 29. Simon's article is a lengthy examination of the assumptions of a system that bases representation on the belief that partisan advocacy best finds truth. It is revealing that none of the three casebooks mention Simon's article.Google Scholar
7 Quoted in Deborah L. Rhode, Ethical Perspectives on Legal Practice, in Geoffrey C. Hazard & Deborah L. Rhode, eds., The Legal Profession: Responsibility and Regulation 151 (1985). The recently published Hazard & Rhode book is a collection of essays that examine the issues raised in this essay. A teacher interested in considering these underlying questions might want to consider using this anthology along with the more traditional casebook.Google Scholar
8 For an excellent discussion on how resource imbalances are virtually inherent in the current system of allocating legal talent, see Jerold S. Auerbach, Unequal Justice (1976). Again, it is revealing that none of the three casebooks excerpt or quote from Auerbach's famous book.Google Scholar
9 Israel Putnarn Callison, Courts of Injustice 569–71 (1956) (“the attorney's ability to convince himself that out of this mass of incoherent, conflicting, abysmal mumbo-jumbo the truth will emerge stands out as the super achievement of our present day legal magicians”).Google Scholar
10 Rhode, supra note 7, at 153–54.Google Scholar
11 Morgan & Rotunda present a hypothetical situation of an attorney employed to help a parent who abuses her child regain custody (at 153–54). There is no discussion in the notes accompanying the case of the attorney's duty to the child or of how concern for dignity of the individual creates a conflict between protecting the dignity of the client and protecting the dignity of the child.Google Scholar
12 Morgan & Rotunda spend eight pages on what they term “some contributions from moral philosophy to the study of legal ethics” (at 10–18). The other two books do not even mention that philosophers long have worked at developing principles of ethics. Although Morgan & Rotunda's treatment is brief and basic, it at least familiarizes students with some basic concepts of moral reasoning (e.g., utilitarian vs. deontological approaches (at 16–18). The other books do not even do that.Google Scholar
13 Kaufman includes a subchapter titled The Obligation to Represent an Unpopular Client (at 423), which consists entirely of a lengthy exchange of letters between David Dudley Field and Samuel Bowles, dated 1870. No attempt is made to apply this material to all the modern situations in which attorneys represent clients who are either unpopular or, more commonly, socially accepted but still socially harmful. Morgan & Rotunda have one problem titled The Client Who Ought to Lose (at 153), but there is no analysis—or mention—of the conflict between zealous representation and an attorney's duty to society. Schwartz & Wydick do not discuss the topic at all.Google Scholar
14 See, e.g., Mark Green, The Other Government 273–89 (1975). The Code of Professional Responsibility states that “a lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client.” EC 2–26 (1980).Google Scholar
15 The term “role-differentiated behavior” is Wasserstrom's, supra note 2, at 4.Google Scholar
16 Green, supra note 14, at 289. see also Chemerinsky, Erwin, Protecting Lawyers from Their Profession: Redefining the Lawyer's Role, 5 J. Legal Prof. 31, 32–34 (1980).Google Scholar
17 For excellent discussions of the ethical problems in negotiations, see Alvin B. Rubin, A Causerie on Lawyers' Ethics in Negotiations, 35 La. L. Rev. 577 (1975) (reprinted with omissions in Kaufmann at 407–19); James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 A.B.F. Res. J. 926.Google Scholar
It should be noted that there are other professional responsibility casebooks that do provide more coverage of ethical problems in negotiations. See Schwartz, Murray L., Lawyers and the Legal Profession 167–209 (1979); Gary Bellow & Bea Moulton, The Lawyering Process: Ethics and Professional Responsibility 149–70 (1980).Google Scholar
18 Morgan & Rotunda also present a problem on negotiating a guilty plea (at 224).Google Scholar
19 The books, of course, do include a discussion of the problem of client perjury. What they do not discuss is the problem of how preparing a witness to testify inevitably shapes the witness's testimony. See, e.g., Monroe H. Freedman, Lawyers' Ethics in an Adversary System 43–49 (1975).Google Scholar
20 Morgan & Rotunda have one problem termed Advising the Corporate Entity (at 351), but it focuses on the problems confronting “outside counsel,” not the ethical issues facing house counsel.Google Scholar
21 Morgan & Rotunda spend four and a half pages on the topic of allocation of decision-making authority (at 149–53).Google Scholar
22 463 U.S. 745 (1983). Morgan & Rotunda mention the cases (at 152). The case might have been decided too late for inclusion in Schwartz & Wydick, although they could have mentioned the lower court decision and the Supreme Court's grant of certiorari.Google Scholar
23 Ladd, John, The Quest for a Code of Professional Ethics: An Intellectual and Moral Confusion, in Hazard & Rhode, supra note 7, at 98, 99.Google Scholar
24 Id. at 99.Google Scholar
25 E.g., rules on unauthorized practice of law and the prohibitions against attorney advertising and solicitation can be viewed as anticompetitive restrictions.Google Scholar
26 See Auerbach, , supra note 8.Google Scholar
27 Id. Google Scholar
28 Bok, Derek C., A Flawed System of Law Practice and Training, 33 J. Legal Educ. 570 (1983).Google Scholar