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Ethics and the Practicing Lawyer

Lawyers are annually required to educate themselves in what is called "ethics" by the professional bar. These seminars in legal ethics concern the obligations imposed on lawyers by the Rules of Professional Responsibility. Although lawyers are duty-bound to comply with these Rules, they have little or nothing to do with ethics.

The rules must, of course, be followed in order to avoid being sanctioned or disciplined by the attorney's state bar association. So the rules are utilitarian in nature. Follow them or you may be sent to the penalty box.

Ethical conduct, by contrast, requires consciousness and understanding of the reason for the conduct. Ethical conduct is grounded in a normative framework serving to impart standards for dealing with the countless factual circumstances we confront every day.

Several things follow from this description of ethics. One is that professional bar associations do a poor job of helping lawyers act ethically. Law schools aren't much better when it comes to teaching the normative content of the practice of law to future lawyers. With some notable exceptions, all too often law schools function in a marketplace driven by a desire to teach students what is necessary to pass a state bar exam, and anything not tested on a bar exam is regrettably considered an educational extravagance.

What is to be done? At a minimum, lawyers should be compelled to demonstrate proficiency in the principles of justice underlying the practice of law. Such proficiency could be incorporated into the bar exam, although the bar politicians are likely to fight hard against that approach. Or, law schools could begin requiring courses in jurisprudence or justice. Still another possibility is to insist that law school applicants demonstrate the breadth of knowledge characteristic of a liberal arts education, and thus come to legal education already equipped with an understanding of competing normative frameworks.

Genuine knowledge of the relationship between ethics and the law has been lost. In the 19th century, lawyers argued to judges by citing relevant examples from literature, philosophy and the humanities. Nineteenth-century lawyers could make such arguments because they were liberally educated. The modern lawyer lacks a similar breadth of knowledge, and instead possesses a mastery of technical details divorced from an ethical framework.

The old way is better.