It’s only half-way through this semester, but I’m starting to put together material for my new course on Legal Ethics and Professional Responsibility next year. This will be a major course commitment for me: I’m teaching one two-hour section in the fall, and two two-hour sections in the spring. (I’ll also continue to teach Electronic Discovery in the fall and Speech and Privacy in Cyberspace in the spring.)
Unlike so many law professors, I’m looking forward to teaching Legal Ethics. I think this is crucially important material for lawyers, but material that is hard to teach because most faculty and most students don’t take it very seriously. A few weeks ago I posted a Twitter request for suggestions: “How should I teach legal ethics so it’s not boring?” Some responses were quite specific: @CarHaulsPickLaw: “show clips of unethical behavior from legal tv shows and have students point out mistakes and say what should have been done”; @BuffaloJennifer: “Do NOT start class with rumours about John Roberts retiring.” Some offered thoughts on why students don’t like their ethics courses: @jmdipippa: “Challenge is to have students take it seriously beyond the MPRE”; @joshcamson: “Examples. Lots of them. Avoid the cases where the unethical conduct was obvious. Stick to the gray areas.” Some law professors are struggling with the same question: @efink: “I’ve been pondering the same question”; @annemyers: “I’m curious what results you get from the “how to teach legal ethics so it’s not boring” question.” A few practicing lawyers recommend the “Scared Straight” approach: @GtroyP: “Start with annual discipline report—do they have those in NY? Pass that around and “tell them this is where careers go to die”; @bojack54: “Start with an overview of accommodations at the closest federal prison.”
The one response that spoke most to me was again from @jmdipippa: “I think it is that we teach it as law: here are the rules and parse them. Causes cynicism. Maybe more hero stories, personal.” I don’t think the problem with most ethical failures is that lawyers don’t know the rules, or that they’re unaware of the punishments. I think that lawyers, like normal people, generally think that what they’re doing is right, and that in most instances it’s their cognitive and ethical blind spots that mislead them into ethical violations.
The approach I’m going to take is inspired by an excellent book on cognitive dissonance theory, Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and Elliot Aronson. Here is my course description:
This course will examine the professional and ethical standards of the legal profession. We will discuss real life problems using the ABA Model Rules of Professional Conduct as well as New York rules, statutes, and case law which govern lawyer behavior and the lawyer’s duties to the client, third parties, the courts and the public. The class will analyze the ethical, moral and personal issues which they will confront as lawyers as well as the disciplinary guidelines under which they will be practicing. This course will focus not just on learning the rules, but understanding and recognizing the circumstances in which lawyers sometimes break the rules. What types of ethical blind spots lead lawyers down paths toward violating professional and legal obligations? This will be an interdisciplinary course: we will study not just disciplinary rules, ethics opinions, and case law, but will also consider sociological and cognitive science literature to gain a better understanding of decision-making and the motivations and influences that can lead good lawyers into unethical and illegal actions.
I’m still reviewing casebooks, but my plan is to supplement the casebook I select with a variety of readings from cognitive theory and social psychology, as well as sociological work like Richard Abel’s Lawyers in the Dock. I may even include some material on ethics in legal education. I’m also looking for behavioral economics literature that studies lawyers’ behavior. I don’t know if anyone else is trying an approach to teaching ethics like this, but to me it’s the only one that makes sense.