Russell and Duenes

Professional Responsibility Based on What?

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I want to make the case, yet again, for Christian education, not only for law students, but at all levels.

As USC professor, Dallas Willard, has pointed out, the university system in America has long since jettisoned any teaching of virtue or ethics. This is because we no longer believe that having moral knowledge, not just moral opinions, but moral knowledge, is possible. This has of course infected the grade schools as well because, as our laws would have it, the government schools must be “neutral” about matters of morality, and so right and wrong cannot be learned there either. Right and wrong are simply a matter of what one can “get away with,” and judging from a lecture we heard last year at the law school about prosecutorial misconduct, it seems we’re getting away with quite a lot these days. The lawyer jokes exist for a reason.

But back to Christian education. In Christian schools, we can indeed teach ethics, robustly, for we know that ethics is grounded in the nature and character of God, that there is a divine law that rules over all man made systems of law, and which should inform man made laws. The need of the hour is for more Christians who have been trained to love and obey God’s law, who can then bring it to bear upon the legal profession, indeed, upon all professions. Yet this will not happen in secular schools. A consideration of several statements about the law and ethics will serve to show why.

Paul S. McConnell chronicles the shift in American law schools from a robust teaching of legal ethics rooted in the eternal laws of God to the teaching of ethics based on the current fads of social acceptability. See Watergate, Moral Relativism, and the Teaching of Legal Ethics. Here are some of the statements from McConnell’s article which show the transformation.

“I never used my elocution to give credit to an ill cause; to justify that which deserved blame; to justify the wicked, or condemn the righteous; to make anything appear more specious or enormous than it deserved. I never thought my profession should either necessitate a man to use his eloquence by extenuations, or aggravations, to make anything worse or better than it deserves, or could justify a man in it: to prostitute my elocution or rhetoric in such a way, I ever held to be most basely mercenary, and that it was below the worth of a man much more of a Christian to do so.” Sir Matthew Hale, English jurist, 1805.

“The present ethical standard as to both branches of the profession expects and requires truth and not trickery, simplicity and not duplicity, candor and not craftiness in the conduct of legal affairs. And generally the new type of advocacy is in form and substance perfectly simple, direct, unaffected and practical.” John A. Boyd, Legal Ethics.

“‘Tis no part of a Lawyer’s Profession to promote Injustice, or help one Man to that which belongs to another. The Laws are made to secure Property, to put an end to contests, and help those to Right that suffer Wrong. They were never design’d to entangle Matters, to perpetuate Quarrels or to enrich any Set of Men at the Damage of the Community. To engage in an ill Cause when I’m conscious ’tis so, is in plain English, to encourage a litigious Humour, to countenance a Knave; ’tis to do my best to disseize an Honest Man of his Birthright and wrest his Money or Land from him.”  Collier, Essays Upon Several Moral Subjects

The early oath lawyers took was: “I swear before God…never to counsel or maintain a cause which does not appear to be just or equitable; unless it be in defense of an accused person; never to employ knowingly, for the purpose of maintaining the causes confided in me, any means contrary to truth.”

“[T]hough few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a multitude.” David Hoffman, A Christian Perspective on Legal Ethics, 1981.

“An argument which does not convince yourself, may convince the judge to whom you urge it; and if it does convince him, why, then, sir you are wrong and he is right. It is his business to judge, and you are not to be confident in your own opinion that a cause is bad, but to say all that you can for your client, and then hear the judge’s opinion…A lawyer has no business with the justice or injustice of the cause which he undertakes unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge.” Dr. Samuel Johnson

“It is a serious indictment of the form and substance of legal education that it has been dedicated to the reactionary and conservative maintenance of the status quo, rather than to a tolerance of change and proposed changes which is the very genius of democratic government. Whenever you teach a young man that there is a metaphysical content to The Law you have temporarily, at least, incapacitated him from acquiring that tolerant point of view. Metaphysics is an unnecessary handicap to social progress, and the law schools ought to divorce themselves from it.” Professor Bernard C. Gavit, Indiana U. School of Law, 1932.

“[T]he problem that arises, here, about relativism is one which leads a great many professors not to want to get tangled up in the whole problem of moral judgment – because, after all, they are all relative judgments, and moral codes are relative to cultures – the students get this study early in their sociology – and they…come out…in courses defining ethics as conformity to your group. Edwin E. Aubrey, Prof. of Religious Thought, U. Penn., 1956.

“A course in professional responsibility is very much needed in these times…With ferment pervading our social structure and social standards, it is even more indispensible that he have this understanding, so that he may adapt his service and the methods of providing it to the changing conditions under which he may find it necessary to operate. Not only will he then serve his society better; his personal success in his chosen profession is more likely assured.” Maynard Pirsig, U. of Minn., 1965 casebook on Professional Responsibility.

“[The Professional Responsibility] materials seek to place the student in a succession of ethical conundrums and ask the student to work his or her way to a solution using the materials provided and the student’s own judgment…[The title of this book ‘Problems and Materials on Professional Responsibility’ itself highlights two further principles which underlie the study of legal ethics. First, it reinforces the fact that current lawyers’ obligations are derived, not from a revealed moral code, but from the traditions of the profession itself. The obligations are largely self-generated and self-imposed, and their content shows us most about what it means to be a lawyer. If the picture they paint of the profession is sometimes unattractive, lawyers have the right and the duty to change the ‘ethical’ principles. Second, the title suggests that ethical issues are rarely open-and-shut and that the standard one should strive for is ‘responsible’ behavior. There is simply no consensus for example, as to the lawyer’s duty to the court if he knows his client is lying. In that and other situations a lawyer can only be sensitive to the issues involved and resolve these difficult cases as responsibly as he or she is able.” Thomas Morgan and Ronald Rotunda, Problems in Professional Responsibility, 1976.

You see where we were and where we’ve come. McConnell puts it well: “Only the earliest casebook on legal ethics contained any reference to the historical debate between those who advocated an absolute moral code and those who denied it. In all of the other casebooks the authors have virtually ignored that debate and have assumed that legal ethics involves no more than evolving concepts of social morality.” But don’t worry, putting our children through 13 years of this in primary school, and then another four years of it at university, and then three more at law school will only have a negligible effect.

-D

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Written by Michael Duenes

August 28, 2012 at 5:21 pm

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