Wednesday, January 16, 2013
Ethics & Advocacy
Chris posted an excellent piece recently about ethics, professionalism, and advocacy. Mark Caldwell followed it up with a wonderful comment about empowering the amoral advocate, and the concerns that raises with most advocacy teachers. I teach ethics (professional responsibility) as part of my course package, but I find that ethics is an integral part of every course I teach, to include evidence, criminal procedure, and various skills courses. As an ethics professor I am constantly referring back to the underpinnings of the model rules of professional conduct, with some references to jurisprudential philosophy as well. I often find that I am one of the first professors the students have encountered who takes this approach. When they comment about this I smile, tell them that law school is cumulative and they will be taking a exam on these subjects for the rest of their life so they should pay attention!
One of the difficulties in law school from a professionalism teaching perspective is that the American Bar Association requires that professional responsibility be taught, but there is no other specific requirement or vehicle to insert professionalism and ethical conduct across the curriculum. Every law school, and its professors, are left to their own devices. Many professors do not want to talk about ethics because it takes time away from teaching students to think like lawyers. When you use the Socratic method in a doctrinal class a discussion about morality, right and wrong, or what should matter, is generally considered wasted time, or, even worse, poor analysis.
I would argue that successful connection of those concepts is actually a higher level of analysis, but I accept that I am in the minority on that approach. It hinges on whether or not you TEACH contextually. When you place the students in the real world of moral choices, it makes the law come alive - but the cost is often some degree of lost control in the classroom. This makes skills uniquely suited as a vehicle to teach ethics. The focused nature of the assignments creates control mechanisms, regardless of the ethical issue raised by the student. The issue can quickly and adroitly be flipped into a teaching moment if the professor has the requisite experience to place the issue raised by the student into the context of the skill taught. This makes advocacy competition teams, along with experiential learning opportunities, the best places to teach ethical lawyering.
Those of us who teach at the intersection of skills and doctrine have multiple opportunities to create within the students at true understanding of how the ethical rules impact their decisions when representing a client. These teaching opportunities exist across the board, from pretrial, trial, and on into appellate practice. Other than clinicians and supervisors of experiential learning, there is no greater opportunity to teach ethics and professionalism than through the lens of the skills course. The problem with it, at least from my perspective, is that it’s difficult enough to teach the individual skill involved in a particular advocacy action. When we add the additional complexity of substantive law, and ethical considerations, it almost becomes more than can be accomplished in a normal skills course. Now just because something is difficult doesn’t mean that you should not try it. It just means that you have to find a creative way to do it.
Experience taught me that ethical considerations are part and parcel of every day in practice. I had ethical conversations with subordinate attorneys, supervisory attorneys, clients, witnesses, and the court. The issues always occurred in the context of my own ethical obligations and considerations as a member of the bar and client representative. I came to conclude that my own survival as an attorney was definitively tied to my understanding of the rules of professional responsibility, a clear concept of my own jurisprudential philosophy about the law (one I could articulate and accept), and my relative skill in applying substantive law to factual situations. We have a moral duty to make certain our students understand the pervasive importance of developing their own ethical house. I tell them that the rules are the foundation, and the walls and roof are built by their actions throughout a lifetime of practice.
So how do you bring up ethical issues when appropriate? I think part of it has to do with your approach to the fundamental teaching of the skills to begin with. When you teach a skill, do you teach it by focusing solely upon the mechanics, or do you look beyond the individual steps to the impact of taking those steps? It is hard to do both effectively. I understand that looking beyond just the skill to the other areas of the law implicated by the skills makes it more difficult to teach the skill itself. I freely agree that sometimes you have to focus primarily on the formulaic nature of the skill itself before you can pull the ethical considerations into the conversation. Sometimes though, the exact opposite is true.
If you want to properly teach ethics and professionalism as part of your advocacy curriculum, it needs to be built into the warp and the weft of the course you are teaching. This means that advocacy and ethical issues must be inserted within the problems you assign. The case file must have issues that tempt the lawyer to go beyond the pale in the search of victory. Each and every one of us have had a student go to far in an attempt to win. When that happens we must take a moment and teach how to do it right and why it should be done in a certain way.
During EATS 2012 we filmed some excellent teaching examples addressing this very issue. I’ve included one of them in this post.
Take a look, and if you find it interesting consider how you might incorporate such teaching methods into your courses. If it really interests you please check out www.youtube.com/user/trialadvocacy to see other examples. Finally come on down to EATS 2013 and have a chance to create your own teaching scenarios to share with others.
All the best,
Posted by Charlie Rose at 2:35 PM