Character and Fitness

Volume 4 • Issue 3 • March 2018
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Teaching Ethics and Professionalism

Preparing law students for character and fitness

When the American Bar Association (ABA) was founded in the late 19th century, advancing legal education was one of its organizing principles—and it remains a core focus to this day. Underpinning the ABA’s commitment to legal education was the belief that building a high-quality, well-trained legal profession went hand-in-hand with developing the best legal education system possible. As a result, the ABA began an accreditation process for law schools in 1923, when it granted accreditation status to more than 40 schools. Today, all state bars acknowledge law degrees from ABA-approved schools as proof of satisfactory legal education, and some even have an explicit requirement that in order to sit for the bar exam, one must earn a law degree from an ABA-approved school (as of 2018, there are 204 approved schools). This measure of standardization across legal education has significant implications for how U.S. lawyers are trained in ethics and professional responsibility.

According to the ABA’s 2017–2018 Standards and Rules of Procedure for Approval of Law Schools, Standard 301 suggests the overarching requirement for law school accreditation is that law schools “maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” Note that this requirement is less about core legal knowledge (for example, the rules of evidence) and more about ensuring that legal training in the United States produces lawyers who are prepared to navigate the ethical and practical realities of lawyering in a responsible way. Put another way, the accreditation standards are in place so that legal training reflects the type of character and fitness demanded by today’s legal profession.

Just as character and fitness is a specific component of becoming a licensed lawyer, ethics and professional responsibility courses are a component of graduating from law school.

In this article, we look at what U.S. law schools are doing to prepare the next generation of lawyers for the ethical and professional landscapes that await them beyond graduation. First, we explore the more overt ways in which the ABA Standards and Rules of Procedure for Approval of Law Schools (henceforth, “Standards”) influence law school curricula with respect to the former’s professional responsibility requirement. Second, we look at how legal education is innovating around ethics and professional responsibility, taking examples from a few U.S. law schools as well as looking at broader trends across legal academia. In the end we are left with a broad picture of how ethics and professional conduct factor into legal training in the United States today.

Professional responsibility as a curricular requirement

Chapter 3 of the ABA Standards outlines what a law school experience should look like, from learning outcomes to curricular themes, and these accreditation standards are revisited and updated on an annual basis. The current curricular requirements are laid out in a series of standards, many of which stress the importance of developing and ensuring the character and fitness of lawyers. Standard 301 on the Objects of Program of Legal Education bears repeating: “A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” Thus, from the outset, the importance of ethical training, and therein conduct, is present. Standard 302 delves deeper into what that means, stressing the need for a curriculum that provides four key components:

(a) Knowledge and understanding of substantive and procedural law

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession

As subsections (c) and (d) establish, the ABA clearly views professional and ethical responsibilities as critical to legal education. Indeed, Standard 303(a) mandates “one course of at least two credit hours in professional responsibility that includes substantial instruction in rules of professional conduct, and the values and responsibilities of the legal profession and its members.” It is evident that from a regulatory perspective, just as character and fitness is a specific component of becoming a licensed lawyer, ethics and professional responsibility courses are a component of graduating from law school.

Given the generality of the ABA Standards, one is left to wonder: What do the courses that fulfill these requirements look like? To begin, it is important to note that law schools retain a large degree of leeway and discretion with respect to both how they teach ethics and professional responsibility as well as what courses satisfy the requirement. However, one commonality across the board when it comes to these so-called PR courses is a focus on the ABA’s Model Rules of Professional Conduct—rules that have been, in some form or another, adopted in every state apart from California (which has its own set of analogous rules). These courses typically use cases to demonstrate the applicability of particular model rules—for example, the famous Spaulding v. Zimmerman case might be used to teach confidentiality obligations. These courses are often (though not explicitly marketed as) geared toward preparing students for the Multistate Professional Responsibility Examination, which is required for admission to the bar in all states but Maryland and Wisconsin.

In order to give students the kind of ethical education that prepares them for the manifold work settings throughout the profession, these courses are doing more than simply reviewing ethical red flags.

Law schools are also finding extracurricular means of flagging the character and fitness requirement and preparing students to navigate the licensing process after law school. For instance, in an interview with The Practice, Marilyn Wellington, executive director of the Massachusetts Board of Bar Examiners, notes that she frequently travels to law school campuses to help demystify the processes around character and fitness as well as other concerns in gaining admission to the bar. “One of the reasons that I spend so much time at law schools in Massachusetts is because students need to understand that we’re not trying to put up a wall,” says Wellington, referring to the character and fitness requirement for admission to the Massachusetts bar. “We’re trying to get them through a process, and we have found students are much better about disclosing and moving through the application when they understand this.” These kinds of resources are crucial in putting the impending (and sometimes daunting) character and fitness requirement in perspective for law students, helping them see how it fits into the larger expectation that they will uphold an ethical career and lifestyle as a member of the legal profession.

Beyond the requirements

In addition to courses that satisfy the ABA’s professional responsibility requirement, schools are also engaging with ethics and professionalism in a number of new ways, offering students a suite of knowledge and training that drives to the heart of character and fitness debates.

Legal profession courses. Some schools are stressing the importance of understanding the legal profession holistically. One new approach can be found at UC Irvine (itself a newly created law school founded in 2007), where a course on the legal profession gets students thinking critically about their careers early in their JD program. The course, Legal Profession, principally created and taught by Ann Southworth and Catherine Fisk who have gone on to write a casebook using their course material, is specifically for 1Ls and is intended to introduce them to the many ways lawyers practice law and how they see themselves fitting into that picture. The real uniqueness of the course, however, lies in its assertion that lawyers in different settings can actually adopt different understandings of ethics—that their ethical normalization depends in many ways on the work they do and the places they do it. In order to give students the kind of ethical education that prepares them for such an impactfully diverse profession, the course is more than simply a review of ethical red flags. Rather, the course strives to expose students to how ethical debates and concerns vary—or don’t—across multiple practice areas and practice settings.

Built on a multidisciplinary foundation that boasts philosophy, economics, history, sociology, and psychology, the course is in many ways about informing students at a critical place in their legal careers—the point at which they begin to decide what kind of law they want to practice and where they want to practice it. These are big decisions, and to underlie that importance, the course takes up a full four credit hours, spanning the fall and spring semester. Using group discussions, speaker panels featuring lawyers from various contexts (for example, large and small law firms, different practice areas, public interest, criminal defense, in-house legal departments), and role-play exercises, students in UC Irvine’s Legal Profession course learn how ethics and professional conduct feature in diverse practice settings. The goal is that at the end of the course, they will be in a much better position to identify which setting is right for them.

The UC Irvine course is simply one example of schools stressing a deeper knowledge of the profession. In that same spirit, Indiana University Mauer School of Law offers a 1L course on the legal profession that explores the economic and socio-legal structure and substance of the modern legal profession (as well as satisfies the professional responsibility requirement). Harvard Law School now requires 1Ls to take a Problem-Solving Workshop expressly aimed at bridging the gap between academics and practice. UC Berkeley offers a course designed to “sensitize” students to the types of ethical issues they will probably experience in their future careers, employing active teaching elements like student-performed skits to demonstrate concepts. The University of Virginia offers a slate of seminars in ethical values that are perhaps less formal than typical courses—often meeting in the professor’s home—and tend to use popular culture like books or films to examine the ethical and moral dilemmas that lawyers face. Other law schools take deeper dives into the ethical issues of particular practice settings. For aspiring litigators, Columbia offers a course that focuses on what goes on in the courtroom, with students sifting through transcripts and reports as they gain a better understanding of the types of ethical issues that arise specifically in litigation. Another course at New York University looks at ethical issues within corporations, from both an individual and institutional perspective.

Clinics provide practical, hands-on experience doing work that benefits those in need of legal services but in a safe environment under the supervision of trained lawyers and educators.

Ethics in the professions. Schools are also developing whole programs devoted specifically to professional ethics. For instance, Harvard’s Safra Center for Ethics was founded as the Center for Ethics in the Professions. Established in 1986 on the urging of then-President Derek Bok, who had written the seminal article “Can Ethics Be Taught?”, the Center’s focus is on developing “problem-oriented courses in ethics that would prepare students for the moral dilemmas and ethical decisions they would face throughout their careers.” The Center pioneers research and coursework in what has been termed “practical ethics.” Dennis Thompson, the founding director of the Center, describes practical ethics in the following way:

First, practical ethics is a linking discipline, seeking to bridge theory and practice. … Practical ethics in the professions should consist of more than a study of the codes of ethics, such as the legal profession’s code and model rules, or the emulation of role models, as in clinical rounds in teaching hospitals. These may be an important part of moral education in the professions, but if they are the principal part, they reinforce parochial and technical conceptions of professional life. Practical ethics tries to relate professional rules and clinical experience to the broader social context in which professionals practice, and to the deeper moral assumptions on which professions depend.

A second feature of practical ethics we have emphasized is its institutional context. Most people live most of their lives under the influence of institutions—schools, corporations, hospitals, media organizations—working for them or coping with them in one way or another. Yet ethics, both as an academic discipline and as concrete practice, has tended to focus either on relations among individuals or on the structures of society as a whole. It has neglected that middle range of intermediate associations, of which institutions are the most durable and influential.

The third characteristic of practical ethics that has become increasingly important is its political nature. Practical ethics is political because it cannot avoid the question of authority: Who should decide? The distinction between the right decision and the right to make the decision is especially significant in practical ethics because people reasonably disagree about many ethical issues—for example, abortion or capital punishment.

Similar to the Safra Center, Michigan’s Law and Ethics Program is a collaborative effort by the University of Michigan’s law school and philosophy department aimed at teaching and researching the space where the two intersect. Yale University’s Ethics Bureau instead takes a clinical approach to the subject matter, offering what it calls “pro bono professional responsibility advice and advocacy.” For two hours a week, students meet in a classroom setting to focus on how lawyers are regulated and governed. For the rest of the course, they provide ethics counseling to legal practitioners in need of advice and work on professional responsibility issues in and out of the courtroom.

It will take time to ascertain how these new approaches bear out in the legal profession, but the effort to bolster the teaching of legal ethics is plain to see.

Clinics. Finally, nowhere in the law school curriculum is this blend of ethics and practice more pronounced than in clinical education. Perhaps more numerous today than ever before, law clinics serve as focused legal aid offices embedded within law schools—both in terms of the physical space they occupy as well as their place in law school curricula. As both a sign and result of the rise of law clinics, the ABA Standards note their place in the ideal law school curriculum, listing law clinics as an acceptable feature of experiential learning and encouraging their creation and continued institutional support. Clinics provide practical, hands-on experience doing work that benefits those in need of legal services but in a safe environment under the supervision of trained lawyers and educators. This unique exposure to real-world substance and impact, combined with the comparatively low risk of anyone being harmed by a student’s inexperience, is vital to students’ legal education. It provides them the chance to be creative in a setting where they can observe how those creative solutions are received by practitioners who truly understand the field—and possibly even a chance to see those solutions carried out. Moreover, it is an opportunity for students to see the value lawyers have in society as technical experts and officers of the court and to reflect on the awesome responsibility they are taking on in joining the legal profession.

Has the future of ethics training arrived?

Between the new course offerings and the clinical programs available to law students today, one can see that law schools have developed fairly robust curricula around ethics and professional responsibility. The extent to which this general trend is due to changes in the ABA Standards that determine law school accreditation is unclear, but there is no denying that they have made an impact. A lot of credit is due to the law schools and their faculty for innovating new ways to approach the subject, centering their courses’ attention on practical application of professional conduct rules rather than merely the letter of the rules themselves.

What is in store for the future of ethics training in law schools? As Southworth and Fisk’s Legal Profession course demonstrates, some courses are moving toward providing a more holistic understanding of the legal profession to offer students the tools they need to better determine where they best fit in. It will take time to ascertain how these new approaches bear out in the legal profession, but the effort to bolster the teaching of legal ethics is plain to see. The ABA has called for a clear standard in how professional responsibility is taught to future lawyers, and law schools have responded.

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Character and Fitness Volume 4 • Issue 3 • March 2018

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