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Published online by Cambridge University Press: 24 April 2015
Prominent authorities have called for the creation of a Code of Ethics for those engaged in legal education. The purpose of this essay is to advance the discussion by proposing a specific set of standards for consideration.
A preliminary question to be answered is why have a code of ethics for law educators?
Ethics are adopted in order to foster unique relationships created by specialized human institutions. Professional codes of ethics differ from morality and law in that they impose additional expectations upon the professional. If they did not, ethical codes would be superfluous, and professionals might simply be expected to act morally and to obey the law. As it is, the ethical demands of a profession are often foreign or contrary to generally applicable principles of morality and law.
Assuming that one agrees that professional codes of ethics are generally salutary, one might disagree about the necessity of drafting a new one for legal academicians. The American Association of University Professors Statement on Professional Ethics may be thought to suffice for defining a teacher's academic responsibilities, as may the American Bar Association Model Rules of Professional Conduct for all ethical questions encountered in the practice of law.
1. Freedman, , The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275, 276 (1986)Google Scholar; Redlich, , Professional Responsibility of Law Teachers, 29 Cleve. St. L. Rev. 623 (1980)Google Scholar. Nine Canons of Ethics were proposed in McKay, , Ethical Standards for Law Teachers, 25 Ark. L. Rev. 44 (1971)Google Scholar. See also Vernon, , Ethics in Academe—Afton Dekanal, 34 J. Legal Educ. 205 (1984)Google Scholar.
2. See infra note 15 and text accompanying note 36.
3. The AAUP Statement on Professional Ethics provides:
I. The professor, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognizes the special responsibilities placed upon him. His primary responsibility to his subject is to seek and to state the truth as he sees it. To this end he devotes his energies to developing and improving his scholarly competence. He accepts the obligation to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge. He practices intellectual honesty.
II. As a teacher, the professor encourages the free pursuit of learning in his students. He holds before them the best scholarly standards of his discipline. He demonstrates respect for the student as an individual, and adheres to his proper role as intellectual guide and counselor. He makes every reasonable effort to foster honest conduct and to assure that his evaluation of students reflects their true merit. He respects the confidential nature of the relationship between professor and student. He avoids any exploitation of students for his private advantage and acknowledges significant assistance from them. He protects their academic freedom.
III. As a colleague, the professor has obligations that derive from common membership in the community of scholars. He respects and defends the free inquiry of his associates. In the exchange of criticism and ideas he shows due respect for the opinions of others. He acknowledges his academic debts and strives to be objective in his professional judgment of colleagues. He accepts his share of faculty responsibilities for the governance of his institution.
IV. As a member of his institution, the professor seeks above all to be an effective teacher and scholar. Although he observes the stated regulations of the institution, provided they do not contravene academic freedom, he maintains his right to criticize and seek revision. He determines the amount and character of the work he does outside his institution with due regard to his paramount responsibilities within it. When considering the interruption or termination of his service, he recognizes the effect of his decision upon the program of the institution and gives due notice of his intentions.
V. As a member of his community, the professor has the rights and obligations of any citizen. He measures the urgency of these obligations in the light of his responsibilities to his subject, to his students, to his profession, and to his institution. When he speaks or acts as a private person he avoids creating the impression that he speaks or acts for his college or university. As a citizen engaged in a profession that depends upon freedom for its health and integrity, the professor has a particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.
4. Model Code of Professional Responsibility: Canons 6 and 7 (1979); Model Rules of Professional Conduct, Rule 1.1. and 1.3.
5. Model Rules of Professional Conduct, Rule 1.2 (1981). “A lawyer shall abide by a client's decision concerning the objectives of representation. …”
6. To the extent that an attorney is less than competent, honest, or zealous, the client may be grievously affected. And to the extent that an attorney is trusted, the attorney may be said to have influence over a client. But this kind of impact on clients is far different from the power of an educator, who may altogether prevent a student from becoming a lawyer.
7. Redlich, supra note 1, at 624. Victor Rosenblum, President of the American Association of Law Schools, echoed this in “The President's Address,” No. 87-1, January 5, 1987, “Deans and faculties of law schools should keep in mind that the law school experience provides a student's first exposure to the profession, and that professors inevitably serve as important role models for students. Therefore, the highest standards of ethics and professionalism should be adhered to within law schools.”
8. As Professor Carrington said in his essay Law and the River, “A law teacher who does not know that he or she enjoys power needs closer self-acquaintance.” 34 J. Legal Educ. 222 (1984)Google Scholar. Freedman, supra note 1, quotes the conclusions of Alan A. Stone and Andrew S. Watson, both psychiatrists and professors of law at Harvard and Michigan respectively, that law students are subservient to professors and feel vulnerable as a result of the prevailing teaching methodology. 39 Vand. L. Rev. 278–79Google Scholar.
9. Professor Cramton has noted that we do not “teach” so much as facilitate “self-learning,” and he has recommended fundamental changes in legal education to improve student learning and lawyer competence. Cramton, , The Current State of the Law Curriculum, 32 J. Legal Educ. 321, 322–23 (1982)Google Scholar. In a more narrow context, Chief Justice Warren Burger advocated the restructuring of legal education to permit specialization in trial advocacy, in order to improve the performance of American litigators. Burger, , The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to our System of Justice?, 42 Fordham L. Rev. 227 (1973)Google Scholar; Burger, , Some Further Reflections on the Problem of Adequacy of Trial Counsel, 49 Fordham L. Rev. 1 (1980)Google Scholar.
10. Cf. Brink, , Legal Education for Competence—A Shared Responsibility, 59 Wash. U.L.Q. 591, 593 (1981)Google Scholar.
11. The aim of all education, even in a law school, is to encourage a process of continuous self-learning that involves the mind, spirit, and body of the whole person. This cannot be done unless larger questions of truth and meaning are directly faced.
Cramton, , The Ordinary Religion of the Law School Classroom, 29 J. Legal Educ. 247, 263 (1978)Google Scholar.
12. Luban, , Against Autarky, 34 J. Legal Educ. 176 (1984)Google Scholar.
13. Sandalow, , The Moral Responsibility of Law Schools, 34 J. Legal Educ. 163, 164 (1984)Google Scholar.
14. See Kennedy, , Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591 (1982)Google Scholar.
15. See Luban, The Adversary System Excuse, and Condlin, , The Moral Failure of Clinical Legal Education, in Luban, D., The Good Lawyer (1984)Google Scholar, and Wasserstrom, , Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1 (1975)Google Scholar. Wasserstrom examines the proposition that “the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.” For discussions comparing the lawyer's role to the requirements of conventional morality, see Fried, , The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976)CrossRefGoogle Scholar, and Freedman, , Personal Responsibility in a Professional System, 27 Cath. U.L. Rev. 191 (1978)Google Scholar. See infra text accompanying note 36 for further discussion regarding the dichotomy between morals and ethics.
16. With respect to each separate profession we must begin by analyzing the function it performs in society. When we know what role a profession plays in the total processes of society we shall then know how that role should be played and what restraints must be observed to make it most effective.
Fuller, , The Philosophy of Codes of Ethics, 74 Electrical Engineering 916, 917 (1955)CrossRefGoogle Scholar.
17. The academic responsibilities of individual educators depends upon their position (dean, librarian, professor, director of clinic), their peculiar talents, and the priorities of the institution.
18. See, e.g., Carrington, supra note 8, at 226; Redlich, , Law Schools as Institutional Teachers of Professional Responsibility, 34 J. Legal Educ. 215, 218–19Google Scholar.
19. Sandalow, supra note 13, at 169.
20. Redlich, supra note 1, at 627.
21. See supra text accompanying note 19.
22. Sandalow, supra note 13, at 170.
23. McKay, supra note 1, at 47.
24. See supra note 3.
25. Model Rules of Professional Conduct, Rule 1.6 (1981).
26. 20 U.S.C. § 1232g(2) (1976).
27. Redlich, supra note 18, at 218.
28. Freedman, supra note 1, at 282-86.
29. See Hahn, , Ethics and Higher Education Cannot Be Separated, The Chronicle of Higher Education, 04 9, 1986, at 47Google Scholar.
30. Redlich, supra note 18, at 217. See also Sandalow's reference to this problem in the text accompanying note 19 supra.
31. Vernon, supra note 1, at 209.
32. Carrington, supra note 8, at 227.
33. Socrate's crimes were “corruption of the young” and “neglect of the gods when the city worships and novel practices in religion.” Apart from his philosophical crimes, however, there is an independent reason why Socrates would not be retained as a legal academician today. He never wrote anything. 20 Encyclopedia Britannica 916 (1950)Google Scholar.
34. Paragraph II of the Statement, supra note 3.
35. Contrast, for example, the AAUP Statement of Policy on Sexual Harassment, adopted in June of 1984. That statement embodies the following suggested policy against exploitation:
It is the policy of this institution that no member of the academic community may sexually harass another. Sexual advances, requests for sexual favors, and other conduct of a sexual nature constitutes sexual harassment when:
1. Any such proposals are made under circumstances implying that one's response might affect such academic or personnel decisions as are subject to the influence of the person making such proposals; or
2. Such conduct is abusive of others and implies, in an abusive manner, a discriminatory hostility toward their personal or professional interests because of their sex.
The ethical standard proposed above proscribes not only sexual harassment as defined by the AAUP, but all sexual approaches and relationships. Extreme examples of sexual harassment, as in Korf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984), are, of course, in violation of the ethical standard. But whether or not a sexual approach is accompanied by an implied threat of reprisal or offer of reward, it is a denigration of the teacher-student relationship.
Conduct of a sexual nature which constitutes “discriminatory hostility” toward people on account of their sex, prohibited by Paragraph 2 of the AAUP Suggested Policy on Sexual Harassment quoted above, is sexism in violation of ethical standard I.C. above.
36. 106 S. Ct. 2841 (1986).
37. Vernon, supra note 1, at 212-13.
38. Freedman, supra note 1, at 280, note 28.
39. Id. (emphasis supplied).
40. Id. at 277, note 11.
41. Id. at 278, note 18, citing Kaplan, , Professor Sends ‘Message’ After Law Review Rejects Article, Nat'L L.J., 05 20, 1985Google Scholar.
42. Id. at 280-82 (1986).
43. Model Rules of Professional Conduct, Rule 6.1 (1981) provides in part, “A lawyer should render public interest legal service.” The comment states: “This rule … is not intended to be enforced through disciplinary process.”
44. Compare Vernon, supra note 1, at 209-10, with Redlich, supra note 1, at 628-29.
45. See ABA Standards for Approval of Law Schools, Standard 402(b) and Aals Bylaws Section 6-5(f).
46. Vernon, supra note 1, at 213.
47. McKay, supra note 1, at 47.
48. The greatest lawyer of our century, Mohandas K. Gandhi, recognized that even resistance to unjust laws demands restraint and sacrifice. He stated that peaceful civil disobedience is an expression of higher laws: the law of nonviolence, the law of self-sacrifice, and the law of suffering. The Words of Gandhi 51 (Attenborough, ed. 1982)Google Scholar.