I teach ethics to law students. That always draws a laugh, or a sarcastic remark like, “Must be a short course.” My favorite response, though, came from a fellow who works at the local feed store and asked what I did for a living. When I told him, he shook his head and said, “Wow, and I thought dairy farmers had a tough job.”
It is a tough job, indeed, for several reasons.
Most students have little or no interest in the course when they enroll in it, which they do only to meet the curricular requirement. Surveys tell me that students sign up for the course with indifference, or even hostility. I understand why.
Some students think we cannot find provably correct answers to ethical problems. Those students entered law school with an easygoing, skeptical relativism they acquired as undergraduates. Others think that we have already found the answers and that they’re obvious. Those students entered law school with a moral certitude they acquired from their family or faith. Both kinds of students have something in common: They enroll in my class thinking it a waste of time.
That attitude presents a collection of challenges. I have to engage uninterested students. I have to show some students that more can be said about ethics than they think. And I have to show others that less can be said.
The greatest challenge, however, comes in helping students understand that they may not even have framed the issues correctly. After all, thinking about ethics as a series of questions and answers may capture how those issues arise in academe, but it does not capture how they tend to arise in life, or, more pointedly, in the practice of law. In those complex contexts, ethical problems come to us as problems, not as hypothetical questions that invite abstract answers. That distinction is important because we do not seek to answer problems but to solve them, and solutions tend to be complex, organic, and communal in ways that answers often are not. Throughout the term I try to lure my students away from the question-and-answer model and invite them to consider other sorts of models.
Of course, my job is also a tough one because I am teaching law students. Their course work has already introduced them to an idea that influences a good deal of the theory around legal ethics: that lawyers hold a special place in our society. Most of them therefore come to the course recognizing, at least to some degree, that serving as someone’s lawyer may allow them — or even require them — to engage in conduct we would otherwise regard as morally obnoxious. They have some understanding, even if rough-hewn, that their professional obligations may compel them to depart from their personal morality, and that those obligations justify that departure.
At the beginning of the course, I often ask them to consider the following scenario. Your best friend comes to you and asks if you will keep a confidence. You agree, and he tells you he has a terrible confession. A few nights ago, while driving down a dark country road, he accidentally hit a young girl. He leapt from the car, checked her pulse, and discovered he had killed her. In a panic, he lifted her body into his arms, carried it to his car, and drove deep into the woods — where he buried the body. The incident tortures him, but he knows that disclosure to the authorities will ruin his life.
Some students immediately conclude that you have no obligation to keep this secret. They do so for different reasons. For example, some think your friend extracted the promise unfairly or believe that competing considerations outweigh whatever obligation of confidentiality may have arisen from your promise. But those students reach that decision without a struggle. Others resist at first, but as we add more facts — for instance, the child’s parents appearing on television every night pleading for information regarding the whereabouts of their beloved daughter — almost everyone comes to a point at which they decide that you can, or even must, reveal what you know.
Then we change the scenario: The conversation does not take place between best friends but between an attorney and a client who wants to understand the legal consequences of his actions. We go back through the decision making. A few students see no distinction; they think that in both cases you may breach the confidence. Most students, however, quickly conclude that the second scenario differs from the first in significant ways. In defense of their conclusion, they discuss “the greatest good for the greatest number,” try their hand at some sort of cost-benefit analysis, or even invoke ideas taken from game theory. When pressed, however, it turns out that all of their arguments finally depend on the special role of the attorney in our society. Again, most of them bring some version of that idea into the room with them and so resort to it immediately when the sledding gets bumpy.
For many years, I thought this was the most interesting aspect of legal ethics: Attorneys must sometimes do things that our moral sensibilities would ordinarily condemn, or refrain from doing things that our moral sensibilities would ordinarily direct. The students seem to find this issue fascinating as well. After all, it confirms an idea they’ve already encountered, underscores their special role in society, and gives them a dramatic glimpse of the brave new world they plan to enter.
We still explore those issues in class, but over time I’ve concluded that law students need to learn two other lessons from a legal-ethics course as well. I have come to think of them as the two most important messages the course conveys, and, at the risk of overstating matters, have come to believe that the moral fabric of our profession depends on students’ learning those lessons — and retaining them.
The first lesson is this: Many solutions to the problems of legal ethics turn not on the unique role of the attorney, but rather on the unique role of the attorney-client relationship. Students don’t take to this immediately. Toward the beginning of the course, I ask my students to identify the unique characteristic of the legal profession, and they overwhelmingly point to qualities they associate with lawyers: aggressive, critical thinkers, educated in the law, and so on. Only one or two will respond by pointing to the distinctive attorney-client relationship.
Once we’ve put that on the table, however, we discover that many of the rules of legal ethics were written to foster a particular kind of relationship between the attorney and the client. More important, we discover that the relationship those rules strive to create has a great deal in common with the relationships we try to build with our families and friends. In studying the characteristics of a sound attorney-client relationship — trust, loyalty, honesty, open communication, availability — we therefore end up learning a great deal about our life beyond the law. Of course, that has the added benefit of reminding the students that such a life exists, a fact newly minted lawyers often have trouble remembering.
The second lesson is this: Engaging in ethical decision making is much more difficult in practice than in the classroom. I illustrate that point with the example of mountain climbers, who decide while still at base camp the precise minute they will turn around from their attempt to reach the summit and head back down. Mountain climbers understand that they will not engage in their best decision making at high altitudes; the thin air, the apparent closeness of the summit, and the pressures of success will compromise their judgment. The best climbers have done all their good thinking at base camp, and they carry it right up the mountain with them.
The analogy to the practice of law is obvious. I teach some of the brightest young people in the country. They will become heads of law firms, business leaders, in-house counsel to major corporations and organizations, attorneys general, judges, legislators, prosecutors, and — perhaps most challenging of all — small-town, solo practitioners. They will find themselves at high altitudes. Summits, many of them false, will tempt them to keep climbing after the point of no return. My job is to help my students build their ethical base camps. And that is the principal reason my job is tough — wonderfully and gloriously so.
Leonard M. Niehoff is an adjunct professor of law at the University of Michigan Law School and an attorney at Butzel Long, in Ann Arbor. He is the author of “What We Believe: Geoffrey Stone’s ‘Perilous Times: Free Speech in Wartime’ and the Assault on Individual Conscience” (Rutgers Law Journal, 2005).
http://chronicle.com Section: The Chronicle Review Volume 52, Issue 36, Page B5
