{"id":7396,"date":"2009-10-10T13:13:34","date_gmt":"2009-10-10T18:13:34","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=7396"},"modified":"2020-02-15T21:54:47","modified_gmt":"2020-02-16T03:54:47","slug":"legal-ethics-course-name","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/10\/legal-ethics-course-name\/","title":{"rendered":"Legal Ethics Course Name"},"content":{"rendered":"

\"86px-US_Department_of_Justice_Scales_Of_Justice.svg\"<\/a>The October 2009 edition of the National Jurist<\/em> magazine includes a statement from Jack Crittenden, the publication\u2019s editor-in-chief, calling for law schools to begin teaching morality<\/a>.\u00a0 Citing the embarrassing role played by lawyers in the financial meltdown of 2008, Crittenden writes that \u201cour law schools should be discussing the concepts of fairness and compassion in relation to the law and representing clients.\u201d He further notes: \u201cToday, 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.\u201d<\/p>\n

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\u2019s.\u00a0 One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students.\u00a0 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?\u00a0 Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.<\/p>\n

Marquette\u2019s experience has reflected the uncertainty over the proper name for the course that used to be universally known as \u201clegal ethics.\u201d\u00a0 While the course at Marquette traditionally was called \u201cLegal Ethics\u201d at some point that title was abandoned, and the over the past twenty years it has been known variously as \u201cProfessional Responsibility,\u201d \u201cLaw and Ethics of Lawyering,\u201d and the current \u201cLaw Governing Lawyers.\u201d\u00a0 At Marquette, the term \u201cethics\u201d was in the course name, then it wasn\u2019t, then it was brought back, albeit in a secondary position to \u201claw,\u201d and then it was dropped again.\u00a0 Although the current course description refers to \u201cethical principles\u201d they are listed as second to \u201clegal principles,\u201d and the course\u2019s focus is described as primarily a \u201cstudy of the principal ways in which lawyers are regulated.\u201d<\/p>\n

From 1997 to 2000, Marquette had a second required course on the legal profession, called \u201cThe Lawyer in American Society.\u201d\u00a0 Initially, the primary text for this course was American Legal Ethics <\/em>by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School.\u00a0 Shaffer\u2019s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer.\u00a0 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<\/em>. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.<\/p>\n

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?\u00a0\u00a0 Why don\u2019t we still call the course \u201cLegal Ethics\u201d?<\/p>\n

I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do.\u00a0 But at the level of course names, we seem to be reluctant to use words like \u201cethics\u201d and \u201cmorality,\u201d as our inability to settle on a permanent name for our required course on professional obligations suggests.<\/p>\n

This phenomenon is not limited to Marquette.\u00a0 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.<\/p>\n

Of the twenty schools, only Notre Dame refers to the course simply as \u201cEthics,\u201d but five others include the word \u201cethics\u201d in the course title.\u00a0\u00a0 Northwestern still uses the traditional \u201cLegal Ethics\u201d and at Washington University, the course is \u201cLawyer Ethics.\u201d\u00a0 Other schools combine \u201cethics\u201d with other concepts as Marquette did in the most recent former name of the course.\u00a0 The University of Michigan uses \u201cEthics and Law of Lawyering\u2014the Marquette version of this switched ethics and law.\u00a0 At the University of Chicago, the title is \u201cLegal Practice and Ethics\u201d while it is \u201cEthics, Business, and Lawyers\u201d at the University of California-Berkeley.<\/p>\n

The most popular name for the course is the ethically neutral \u201cProfessional Responsibility\u201d which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA.\u00a0 Wisconsin, apparently to emphasize the multiplicity of obligations, calls it \u201cProfessional Responsibilities.\u201d\u00a0 At NYU, it is \u201cProfessional Responsibility and the Regulation of Lawyers;\u201d while at Yale it is \u201cProfessional Responsibility and the Legal Profession.\u201d\u00a0 Harvard, being Harvard, uses its own name, \u201cLegal Profession.\u201d<\/p>\n

If law schools do decide to follow Crittenden\u2019s 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 \u201cLegal Ethics\u201d as the name of the basic courses in \u2026 legal ethics.<\/p>\n

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.\u00a0 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\u2019s Model Rules of Professional Conduct.\u00a0 Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules.\u00a0 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.<\/p>\n

Wisconsin\u2019s 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.\u00a0 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.<\/p>\n

I, for one, would be happy to see the name of our course returned to \u201cLegal Ethics.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

The October 2009 edition of the National Jurist magazine includes a statement from Jack Crittenden, the publication\u2019s editor-in-chief, calling for law schools to begin teaching morality.\u00a0 Citing the embarrassing role played by lawyers in the financial meltdown of 2008, Crittenden writes that \u201cour law schools should be discussing the concepts of fairness and compassion in 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