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Professional Responsibility Casebooks and the New Positivism: A Reply to Professor Chemerinsky

Published online by Cambridge University Press:  20 November 2018

Ted Schneyer
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Reply/Rejoinder
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American Bar Foundation Research Journal , Volume 10 , Issue 4 , Fall 1985 , pp. 943 - 958
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Copyright © American Bar Foundation, 1985 

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References

1 Erwin Chemerinsky, Pedagogy Without Purpose: An Essay on Professional Responsibility Courses and Casebooks, 1985 A.B.F. Res. J. 189.Google Scholar

2 Kaufman, Andrew L., Problems in Professional Responsibility (2d ed. 1984) (hereinafter cited as Kaufman).Google Scholar

3 Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility (3d ed. 1984) (hereinafter cited as Morgan & Rotunda].Google Scholar

4 Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics (1983) (hereinafter cited as Schwartz & Wydick).Google Scholar

5 Countryman, Vern, Ted Finman, & Theodore J. Schneyer, The Lawyer in Modern Society (2d ed. 1976).Google Scholar

6 Schwartz & Wydick at xv.Google Scholar

7 Schwartz & Wydick at 1.Google Scholar

8 Morgan & Rotunda at 128–36.Google Scholar

9 Id. at 203 (question 5).Google Scholar

10 Morgan & Rotunda at 155–56 (questions 2 and 4).Google Scholar

11 Kaufrnan at 448–49 (problems 50 and 51).Google Scholar

12 Id. at 449.Google Scholar

13 A. A. Sommer, The Emerging Responsibilities of the Securities Lawyer (1974), Fed. Sec. L. Rep. (CCH) ¶ 79,631, quoted in Kaufman at 313–14.Google Scholar

14 Abe Krash, Professional Responsibility to Clients and the Public Interest: Is There a Conflict? 55 Chi. B. Rec. 31 (1974)quoted in Kaufrnan at 449–54.Google Scholar

15 Morgan & Rotunda at 157–63.Google Scholar

16 Id. at 155–56 (question 3).Google Scholar

17 Id. at 145 (problem 15).Google Scholar

18 Id. at 147–48 (questions 2c and 4c).Google Scholar

19 Schneyer, Ted, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529.Google Scholar

20 Wasserstrom, Richard, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975), yuoted in Kaufman at 34–46.Google Scholar

21 Kaufman at 46 (note).Google Scholar

22 Id. at 296–300.Google Scholar

23 See Goldman, Alan, The Moral Foundations of Professional Ethics (1980).Google Scholar

24 Kaufman at 822–33.Google Scholar

25 Schwartz & Wydick at 1 & n.1. This videotape, titled “Negotiations,” isoneof a set of tapes widely used in law school professional responsibility courses. See ABA Consortium for Professional Education, Dilemmas in Legal Ethics (1977).Google Scholar

26 Morgan & Rotunda at 142–43 (questions 2 and 3).Google Scholar

27 Id. at 224–28 (problem 25).Google Scholar

28 See Countryman, Finman, & Schneyer, supra note 5, at 351–55.Google Scholar

29 Kaufman at 448–54.Google Scholar

30 id. at 449.Google Scholar

31 Morgan & Rotunda at 177–82 (problem 20).Google Scholar

32 Schwartz & Wydick at 160 (question 3; tape on the lawyer as counselor).Google Scholar

33 Kaufman at 246–49, quoting Monroe Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966). See also Kaufman at 270 (briefly discussing the same problem as it arose in the well-known novel and movie Anatomy of a Murder).Google Scholar

34 Schwartz & Wydick at 220–21.Google Scholar

35 Schwartz & Wydick at 32 (problem 7). See also id. at 167 (question 3).Google Scholar

36 Morgan & Rotunda at 328–37.Google Scholar

37 id. at 332–37, quoting Morgan, Thomas, The Evolving Concept of Professional Responsibility, 90 Haw. L. Rev. 702, 707–12 (1977).Google Scholar

38 id. at 300–303, quoting Marvin W. Mindes, Lawyer Specialty Certification: The Monopoly Game, 61 A.B.A. J. 42(1975).Google Scholar

39 Friedman, Milton, Capitalism and Freedom 137–60 (1962).Google Scholar

40 Kaufman at 517 (minimum fees), 534–78 (advertising and solicitation), 656–67 (group legal services); Morgan & Rotunda at 239–42 (minimum fees), 252–71 (advertising and solicitation), 321–28 (group legal services); Schwartz & Wydick at 55–75 (advertising and solicitation).Google Scholar

41 Model Code of Professional Responsibility, Preliminary Statement (1980).Google Scholar

42 Model Rules of Professional Conduct, Comments (1983) (passim).Google Scholar

43 Morgan & Rotunda at 41–49.Google Scholar

44 Kaufman at 582–605.Google Scholar

45 Id. at 607–13.Google Scholar

46 Id. at 652–55, 669–74. See also id. at appendix, 851–54.Google Scholar

47 Id. at 626–27. See also id. at appendix, 854–55. The other casebooks cover mandatory pro bono as well. See Morgan & Rotunda at 390–404; Schwartz & Wydick at 38–45.Google Scholar

48 Of course my criticism of Chemerinsky's review does not mean I endorse each of the casebooks in question. I do not. Schwartz & Wydick, though clearly more serviceable than Chemerinsky suggests, does mike me as a narrow and rather uncritical book. If there must be one-credit legal ethics courses, then the book will do, but, like Chemerinsky, I wish all students could be more fully exposed to the subject. Morgan & Rotunda is broader in scope and more apt to ask critical questions about the rules and institutions in the field. But it moves from one problem to another with little continuity or hint of an overarching analytical framework. Consequently, on the one occasion when I taught the book, I found it rather choppy and unexciting, though competent. The Kaufman book has broader and deeper coverage than the others, and its commitment to the problem method is not made at the expense of organizing themes. It is a good book but not a great one, because it is not informed by any new and powerful concepts that will make professional responsibility teachers see their subject differently.Google Scholar

49 Geoffrey C. Hazard & Deborah Rhode, eds., The Legal Profession: Responsibility and Regulation (1985); David Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers’ Ethics (1983); Dennis Nolan, ed., Readings in the History of the American Legal Profession (1980). Chemerinsky mentions the first book and its possible use as a supplement (at 192 n.7).Google Scholar

50 L. Ray Patterson, Legal Ethics: The Law of Professional Responsibility ix (2d ed. 1984).Google Scholar

51 Id.Google Scholar

52 Shaffer, Thomas L., American Legal Ethics: Text, Readings and Discussion Topics XXi (1985).Google Scholar

53 Id. at xxvii-xxix.Google Scholar

54 Id. at xxiv-xxv.Google Scholar

55 Bernard Wolfman & James P. Holden, Ethical Problems in Federal Tax Practice (2d ed. 1985).Google Scholar

56 Id. at v.Google Scholar

57 See Postema, Gerald, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63 (1980).Google Scholar

58 See Simon, William, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29. Chemerinsky calls this article “superb” and finds it “revealing” that none of the reviewed casebooks mentions it (at 192 n.6).Google Scholar

59 Holmes, Oliver W. Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).Google Scholar

60 Goldman, Alan, supra note 23, at 33.Google Scholar

61 See Schneyer, , supra nore 19, at 1532–35.Google Scholar

62 Id. at 1550–69.Google Scholar

63 Model Code of Professional Responsibility DR 7–101(A)(I) (1980).Google Scholar

64 Model Rules of Professional Conduct Rule 6.1 comment (1983).Google Scholar

65 Id. at Rule 1.2(c) & comment.Google Scholar

66 Id. at Rule 1.16(b)(3).Google Scholar

67 See, e.g., Alan Goldman, Confidentiality, Rules and Codes of Ethics, Crim. Just. Ethics, summer-fall 1984, at 8. (No rule on confidentiality, “not even one with built-in exceptions, can capture the lawyer's moral duties in all the situations he might encounter.”Id. at 10.).Google Scholar

68 Id. at 11. See also Chemerinsky at 197–98 (“[A]ttorneys may believe they act ethically so long as they comply with the code …. A code may discourage attorneys from seeking moral or ethical solutions.”).Google Scholar

69 The late philosopher Charles Frankel wrote:Google Scholar

Can a profession composed of people who hold radically different political and moral outlooks come to an agreement [about what sewes the social welfare]? Probably not, if what is sought is an official doctrine to which all must swear fealty. But the function of a professional code … is not to provide practitioners with textbook maxims. It is to sensitize them to the scope, depth, and complexity of the commitments they have undertaken in entering the profession.

The value of a code, therefore, lies less in its specific “oughts” and “musts” than in its utility as a catalyst for a continuing discourse on the profession's raison d'être.

Charles Frankel, Book Review (The Code of Professional Responsibility), 43 U. Chi. L. Rev. 874 (1976), quoted in Kaufman at 29–30.Google Scholar

70 For a similar point of view on the value of rules in teaching law students professional responsibility, sec Monroe Freedman, The Problem of Writing, Enforcing and Teaching Ethical Rules: A Reply to Professor Goldman, Crim. Just. Ethics, summer-fall 1984, at 14, 15–16.CrossRefGoogle Scholar

71 For discussion of this question, see Warren Lehman, Rules in Law, 72 Geo. L.J. 1571 (1984); John Rawls, Two Concepts of Rules, 64 Phil. Rev. 3 (1955).Google Scholar

72 Legal scholarship is obviously in a period of extraordinary interest in the nature of rules and of rule interpretation. See, e.g., The Interpretation Symposium, 58 S. Cal. L. Rev. 1 (1985). For an interesting argument that judges should adopt a new conception of statutes that would permit nonenforcement on grounds of obsolescence, see Guido Calabresi, A Common Law for the Age of Statutes (1982).Google Scholar

73 My question was inspired by a problem that arose in New York. See New York State Bar Ass'n Ethics Opinion 486 (1978), quored in Stephen Gillers & Norman Dorsen, Regulation of Lawyers: Problems of Law and Ethics (1985). The Gillers and Dorsen casebook, incidentally, is a fine new entry in the genre Chemerinsky deplores; it relies heavily on problems, many of which are excellent, and makes copious references to the ABA codes.Google Scholar

74 Compare Code of Professional Responsibility DR 4–101 (1980) (forbidding disclosure of confidences and secrets not involving client's intention to commit a crime), with Model Rules of Professional Conduct Rule 1.6 (1983) (disclosure forbidden except as necessary to prevent criminal conduct likely to cause imminent death or serious bodily harm).Google Scholar