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Thursday, April 07, 2011

Teaching Legal Ethics in a Legal Recession

I have taught Legal Ethics on and off for about eight years now.  It offers many challenges, the foremost being that the students -- and often the professor, too -- are required to be there and don't much want to be.  The other major problem is that, even with an excellent problem-based book -- I use the Lerman and Schrag book and I think it is a superb problem-based casebook -- it can be difficult to get students fully to appreciate and engage in the ethical questions and dilemmas presented to them.  The client, after all, isn't in the room with them, so they don't always think of interacting with the client him- or herself, and not just with the text of the rules.

I have lately been thinking, though, that another influence on the class is the economy itself.  It would be foolish to say that a given year's class of students is more or less "ethical" than others.  But I do think that the answers I have been receiving in class discussion for the last couple of years have been heavily influenced by the poor legal economy.  For one thing, it can be hard to focus on the -- forgive me -- niceties of legal ethics when your first concern is just getting a job, any job.  More importantly, my sense is that students' responses to ethical dilemmas are now heavily influenced by the idea that any client -- even a client in a hypothetical problem -- may be the last client they ever see, and that if something has to give, they would always rather keep a client than withdraw or give recommendations that risk seeing the client walk.  My current crop of students is much more loyal to the "zealous advocacy" model of lawyering and much less interested in any overarching duties they may have as officers of the court or servants of the legal system as a whole.  There are justifications for such a position, of course, but it's the sheer degree of this preference that startles me.  And where a rule is permissive rather than mandatory, as in the case of permissive breaches of confidentiality under Rule 1.6, they usually prefer not to disclose.  

I wonder whether others have observed similar trends in their own legal ethics classes, how they feel about it, and what they do about it.  Provided that my students are making permissible choices, I'm loath to push them to hard in the other direction; but I want them to see that there are other directions, and to think about why they sometimes might or might not be preferable courses of action.  In particular, I try to remind my students that, even in a down legal economy, there are always other choices; that the legal economy rises and falls and things will not always be exactly as they are; and that the one constant they must preserve over the course of their entire career is their sense of self and their reputation, which itself can be economically valuable over the long haul.  Clients come and go, and there is some danger in sacrificing everything for the one client in front of you simply because you're afraid another one will be a long time coming.  Still, that can be cold comfort for students who fear they won't see a first job or client, let alone a tenth or hundredth client.   

Posted by Paul Horwitz on April 7, 2011 at 10:59 AM in Paul Horwitz | Permalink


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your post raises a great question. fwiw, it seems that i chronically face the opposite problem, even in this economy -- for example, students who strain to find that an exception to the duty of confidentiality exists so that they can reveal client confidences and generate what they think is a socially just result.

Posted by: John Steele | Apr 8, 2011 1:18:02 AM

Fascinating. I don't know that the data would be as reliable as one might desire, but it would be really interesting to poll your students with clickers (you can save the session) on the questions bearing these results over time. It would take a long while to bear comparable data in changed economic times, but that would be a really interesting article. I wonder whether there's anything out there doing anything similar in prior tough times. Thanks for a really interesting post.

Posted by: Jen Kreder | Apr 7, 2011 9:59:42 PM

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