The October 2009 edition of the National Jurist magazine includes a statement from Jack Crittenden, the publication’s editor-in-chief, calling for law schools to begin teaching morality. Citing the embarrassing role played by lawyers in the financial meltdown of 2008, Crittenden writes that “our law schools should be discussing the concepts of fairness and compassion in relation to the law and representing clients.” He further notes: “Today, it is the institutions of higher education that must carry forth the banners of morality, virtue and responsibility in order to keep America great. And law schools play a greater role in that responsibility than perhaps any other institution of higher learning.”
How to teach ethics and morality, or even if it is appropriate to do so, has been a much discussed topic in the legal academy, going back at least to the Watergate Crisis of the mid-1970’s. One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students. Should the course be primarily about the formal rules governing lawyer conduct or should it focus on the ethical conduct of lawyers separate and apart from the rules that govern them? Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.
Marquette’s experience has reflected the uncertainty over the proper name for the course that used to be universally known as “legal ethics.” While the course at Marquette traditionally was called “Legal Ethics” at some point that title was abandoned, and the over the past twenty years it has been known variously as “Professional Responsibility,” “Law and Ethics of Lawyering,” and the current “Law Governing Lawyers.” At Marquette, the term “ethics” was in the course name, then it wasn’t, then it was brought back, albeit in a secondary position to “law,” and then it was dropped again. Although the current course description refers to “ethical principles” they are listed as second to “legal principles,” and the course’s focus is described as primarily a “study of the principal ways in which lawyers are regulated.”
From 1997 to 2000, Marquette had a second required course on the legal profession, called “The Lawyer in American Society.” Initially, the primary text for this course was American Legal Ethics by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School. Shaffer’s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer. After the first year, the Shaffer text was abandoned, although one section did replace it with another Shaffer book entitled, Lawyers, Clients, and Moral Responsibility. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.
Why does Marquette Law School, a branch of a Christian university, seemingly have such difficulty in holding itself out as a teacher of ethics and morality? Why don’t we still call the course “Legal Ethics”?
I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do. But at the level of course names, we seem to be reluctant to use words like “ethics” and “morality,” as our inability to settle on a permanent name for our required course on professional obligations suggests.
This phenomenon is not limited to Marquette. As an experiment, I examined the web pages of 20 leading law schools to determine how each school deals with the question of what to call its basic course in professional obligation.
Of the twenty schools, only Notre Dame refers to the course simply as “Ethics,” but five others include the word “ethics” in the course title. Northwestern still uses the traditional “Legal Ethics” and at Washington University, the course is “Lawyer Ethics.” Other schools combine “ethics” with other concepts as Marquette did in the most recent former name of the course. The University of Michigan uses “Ethics and Law of Lawyering—the Marquette version of this switched ethics and law. At the University of Chicago, the title is “Legal Practice and Ethics” while it is “Ethics, Business, and Lawyers” at the University of California-Berkeley.
The most popular name for the course is the ethically neutral “Professional Responsibility” which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA. Wisconsin, apparently to emphasize the multiplicity of obligations, calls it “Professional Responsibilities.” At NYU, it is “Professional Responsibility and the Regulation of Lawyers;” while at Yale it is “Professional Responsibility and the Legal Profession.” Harvard, being Harvard, uses its own name, “Legal Profession.”
If law schools do decide to follow Crittenden’s recommendation and focus much more explicitly on ethical and moral behavior on the part of lawyers and clients, a good way to start would be to return to the use of “Legal Ethics” as the name of the basic courses in … legal ethics.
I will acknowledge that teachers of this course in Wisconsin do face a type of pressure to orient their courses around the formal rules governing the practice of law that does not exist in other states. Forty-six states now require prospective lawyers to take the Multistate Professional Responsibility Examination, a separate examination that requires knowledge of the American Bar Association’s Model Rules of Professional Conduct. Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules. Three of the other four states test knowledge of ethical rules as part of the regular bar examination and the topic is covered, sometimes extensively, in bar review courses for those states.
Wisconsin’s diploma privilege, however, means that the only exposure that students at Marquette and the UW receive to the rules governing law practice is what they are exposed to in their required Professional Responsibilities or Law Governing Lawyers course. However, I do not find persuasive the argument that there is not time in this class to provide both a thorough explication of the Wisconsin Rules and to challenge students to think systematically about the moral and ethical obligations that follow from bar membership.
I, for one, would be happy to see the name of our course returned to “Legal Ethics.”