Teaching Legal Ethics

I have been assigned to teach ethics to law students next year. No doubt to snarky detractors of the whole enterprise that looks like the set up for a bad joke, but the course in “professional responsibility” is an attempt to do what they would have us do: offer a sense, early on, that lawyers ought to care about and be dedicated to more than their own and their clients’ self-interest and personal gain. As I prepare, I have wondered how to discuss the example of David Boies. The founding partner of an elite firm, he was recently fired by the New York Times after the newspaper learned he was simultaneously working for Harvey Weinstein in an effort to quash a story it was preparing about the latter’s sexual misconduct. The Times called it “a grave betrayal.”

By all measures, Boies is one the most talented, successful, and well-regarded lawyers practicing today. I hesitate to second guess such a figure. According to experts, his conduct, however he might have imagined it, shows conflict of interest; two principals, no principles. Professor Deborah Rhode has pointed out that his defense he himself had judged the engagements to be compatible would not pass in the classroom. For it is the client and not the counsel who has the right to decide whether to waive such a conflict, requiring that it be disclosed to ensure “informed consent.” The lawyer serves the client(s); the client does not exist simply to pay the bills.

The criticism of Boies is much more than the indictment of an individual. He did what lawyers do by performing a careful reading of the relevant rules. The problem is not Boies personally. It is the issue that sophists have raised since antiquity. The skill of the lawyer poses a risk to society. Audiences are wary because these speakers are beguiling, not because they are not.

So I have always had misgivings about what I do for a living. The better I am, and the better my students, the worse the dilemma. I am not suggesting we prefer incompetence but instead that we have defined technical expertise against our true ideals.

What I mean is that we admit people to law school who are clever. They present well. They are able to distinguish hypothetical situations from the governing precedent. They can, further, persuade others to accept the distinctions. This is not an inconsequential skill. Many otherwise highly competent people are incapable of putting forward their point to bring around open-minded observers.

Then we train those who have enrolled, including with rewards for performance, so that their competence in winning a dispute is superior to almost all who lack such an education in rhetoric, assessed by legal standards of course. Our graduates’ role is to exploit language on behalf of a client and a cause. They are hired on that basis. They are not retained to lose in litigation or gain less of an advantage than is possible on a deal.

The student with the best scores on the entrance exam or the first-year finals is deemed entitled. We do not test anyone on whether they are considerate, decent, or kind. The textbook I selected opens with the true account of a recent sitting of the California bar exam in which the person who paused to help a stranger suffering a seizure receive no break in the deadline to make up for their sacrifice. This system reflects the logic of narcissism.

We are so infatuated with this concept of “merit” that we have lost the skepticism integral to merit in thought. By stating that the individual who prevails in a contest of words deserves the favors of life, we will not, most of us, end up especially happy. Too many lawyers frame life in the same manner. It is a perpetual game.

While I am critical of lawyers (and law professors), I would be naive to suppose this community has a monopoly on moral failing. Perhaps it is more obvious displayed by lawyers, but the same could be said of businesspeople (and business professors) who use a different mode of analysis with the same spirit of selfishness. For lawyers, because America relies on an adversarial system of justice, we necessarily generate outcomes that one side will regard as wrong if not unfair. Many laws also are the product of compromise, rendering them ambiguous or riddled with loopholes, and even legislation passed unanimously is unlikely to have been designed for every contingency that will arise. Lawyers deserve a modicum of respect for being able to see what others cannot. But they use the insight for purposes that might not be universally commended.

By now I have taught a couple thousand of students. Although more than a few have been facile in legal reasoning, among them have been persons whose impressive intellect has not been matched to any corresponding conscience. Their apparent ambition should serve as ample warning. Yet some students have struggled in the game of interpreting doctrine, whose commitment to doing right in the world cannot be doubted. I have conducted no scientific study. But I would hardly correlate intelligence to virtue. The same is true of colleagues in practice and academe. (I do not exempt myself; I’m merely middling on both metrics.)

My argument might be rejected, but I am compelled to advance it: the trouble with the legal profession is not so much the aberrations as the norms. The better a lawyer, the worse a citizen. We ridicule those who are sincere in promoting the public interest. They may be the best among us.

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