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Wednesday, August 22, 2012

What's in a Name?

In developing this semester's syllabus for my course, I found myself debating the right name.  Here at BLS, we call the 3-credit course which I teach, "The Legal Profession" and the 2-credit course "Professional Responsibility."  And yet I find myself wanting to call the course ethics, as that is often what we are really talking about.  (And it is, incidentally, how I explain the course, and my related scholarship, to non-law school types when they ask me what I do). 

My course does have a subtitle: "The Law and Ethics of Lawyering."  Yet I wonder when the word ethics was relegated to a subtitle of professional responsibility or the legal profession, or erased from the course name all together (assuming it was ever there).  A completely non-statistically significant review of casebooks reveals some with no mention of ethics or morality in the title: "Cases and Materials on the Law Governing Lawyers," "Regulation of Lawyers," "Professional Responsibility," "Lawyers and the Legal Profession;" and a few with ethics or morality in the title: "Lawyers and Fundamental Moral Responsibility," "Legal Ethics in the Practice of Law," and, most directly, "Legal Ethics."  I use one of the former casebooks, and find that it still contains plenty of discussion of the moral/ethical issues which lawyers face. 

And yet I wonder if the naming sends a signal to students.  The definition of ethics allows for its use for either individuals or groups--Webster's definnition states in part: "rules of practice in respect to a single class of human actions; as, political or social ethics; medical ethics."   Nonetheless, lawyers are often uncomfortable incorporating morals into their work, and perhaps even their education.  Russ Pearce at Fordham has made a nice film about this issue, which sparked a good class discussion yesterday.

Posted by Cynthia Godsoe on August 22, 2012 at 12:01 PM | Permalink


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"Ethics" generally should be a prominent part of any such course, granted the specific professional and ethical rules by which the profession endeavors to regulate itself. I happen to think, unlike, say, august legal ethicists like Monroe Freedman, that students should become introduced to (philosophical) ethics (or morality), learning how and why professional rules sometimes come in conflict with beliefs, principles and values found in the principal ethical traditions. Of course all of this is the subject of ongoing debates in legal ethics, with notable contributions from Deborah Rhode, William Simon, David Luban, Bradley Wendel, Daniel Markovits, among others. That "lawyers lawyers are often uncomfortable incorporating morals into their work," is not surprising, although it may be a simply a testament to their own ignorance or unduly cramped conception of "the ethical" as it relates to the profession. Your students, if they do not already, should be encouraged to keep up on these debates, some of which take place, albeit in an attenuated form befitting the medium, at the Legal Ethics Forum (a blog).

Posted by: Patrick S. O'Donnell | Aug 22, 2012 12:38:40 PM

Do you get the sense that students pay much attention, if any, to course titles? The question you raise about attorneys incorporating morals into their work is interesting -- and surely good fodder for class discussion, whatever that class might be called. But the signal(s) sent by course titles seems like a different and maybe more elusive issue. Isn't it possible that students don't ever really hear "Ethics" or "Legal Profession" or "Professional Responsibility" but instead "that required upper-division class that may (or may not) prepare me for the MPRE"?

Posted by: SparkleMotion | Aug 22, 2012 12:39:12 PM

There is a valuable discussion of the topic in the "Carnegie Report" beginning at p. 148. The upshot: perhaps the name of the course would not matter so much if law schools more broadly and explicitly built professional identity formation into their curricula.

Posted by: Michael Duff | Aug 22, 2012 1:10:49 PM

Fwiw, the changes in the course names track the evolution (or watering down?) in the title of the rules themselves: canons to code to rules; ethics to professional responsibility to professional conduct. As I understand it, the phrase "Legal Profession" is taken from ABA Accreditation Standard 202(a)(5).

Some profs think that using "ethics" is a mistake and prefer "the law governing lawyers." (I may be mistake but I believe that, for example, Brad Wendel teaches the law of lawyering in the basic class and then teaches an advanced seminar that grapples with moral and political philosophy.) Other profs (and our helpful critic Patrick O'Donnell!) think otherwise. I'm not sure that the course title makes any difference to the student, the instructor's approach sure does, imho.

Posted by: John Steele | Aug 22, 2012 1:21:27 PM

"Medical Ethics" along with the standard of "first, do no harm," died when docs conspired in mutilation of atheist babies' sex organs without their consent.

"Legal ethics," likewise, is now a laughing matter, considering that almost all our gummint leaders are money-grubbing lawyers whose only ethic revolves around re-election.

Posted by: Jimbino | Aug 22, 2012 3:24:51 PM

Some good comments on this issue in Mary Ann Glendon's "A Nation Under Lawyers"

Posted by: Thomas | Aug 22, 2012 8:27:05 PM

Thanks for these helpful references. As several of you point out, it's unclear whether students pay any attention to the course name, but rather choose courses based upon the professor, whether or not it's required, etc. I tend to think that word choice does send strong signals and, often, influences behavior. (As an aside, I had one colleague tell me he thought any course entitled "x and the law" was useless and ridiculous. This point itself seemed ridiculous to me, as renaming could get around this problem e.g. Children and the Law becomes Child, Family and State).

In any event, I agree with Patrick that there is an "unduly cramped" vision of the role of morals or ethics among many lawyers and students.

Posted by: Cynthia Godsoe | Aug 23, 2012 9:51:16 AM

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