Bernstein, A --- "The Pitfalls Approach to Lawyers' Professional Responsibility: Forewarned, Forearmed, Ethical" [2008] LegEdDig 5; (2008) 16(1) Legal Education Digest 14

• The pitfalls approach to lawyers’ professional responsibility: forewarned, forearmed, and ethical

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The pitfalls approach to lawyers’ professional responsibility: forewarned, forearmed, and ethical

A Bernstein

Brook LS Research Papers Working Paper No. 92, 2007, pp 1–38

‘The pitfalls approach’ is a way to prepare students for the practice of law in the United States.

It joins a sprawling pedagogical menu: Designers of law school curricula have many choices, among them opportunities to omit and abstain. Any American law school could, for instance, quit teaching its fixtures like contracts, torts, property, criminal law, and constitutional law. These required- seeming courses are in fact electives as far as American Bar Association accreditation is concerned. Tradition, inertia, and prerogative anchor them in place, rather than any rule.

Against this laissez-faire backdrop, an incongruous demand sticks out: Law students must, according to the accreditation standard, receive instruction in professional responsibility, or on ‘the history, goals, structure, values, rules, and responsibilities of the legal profession and its members.’ An ‘interpretation’ in the ABA rules goes on to recommend ‘instruction in matters such as the law of lawyering and the Model Rules of Conduct of the American Bar Association’ — more improbable specificity, inside a standard otherwise inclined to permit almost anything and any omission in the curriculum.

Law schools should teach their students about the dangers and opportunities that await them in this profession. In this approach, called here a pitfalls pedagogy, instructors cover the course according to their own priorities, while maintaining focus on three unifying themes: (1) The positive law of lawyering; (2) Decision points for an attorney; (3) Pitfalls are opportunities.

When it omits pitfalls, the legal curriculum withholds crucial facts, doctrines, policy, and philosophy from people who have entrusted educators to prepare them for their vocation. Knowing about pitfalls ahead of them makes new lawyers more, not less, fulfilled and secure when they begin their work.

Years (not to mention money) spent in pursuit of a law degree trains the risk-averse mind on the prospect of losing one’s privilege to work as a lawyer.

Awareness of the disbarment risk does not suffice to make law students aware of the vulnerability of their license to practice. The authority of licensure casts a shadow wider than the range of sanctions that disciplinarians actually impose. Students should learn about the width of the professional shadow before they graduate and take up their careers under it.

After candidates graduate from law school, perform well enough on written exams, and apply for membership, bar authorities inquire into their moral character and fitness to practice law.

The swath of control gets wider still via regulators’ habitual demands of full disclosure about a lawyer’s past.

Another way to see the power of disciplinary law is from the perspective of client protection, where discipline functions as a substitute for the economic clout that many clients hold, which students who plan to practice in firms may take for granted. Economic leverage gives some clients the protections and prerogatives in practice that disciplinary law assigns to them in principle. Consequently, well- heeled individuals and entities seldom need to resort to bar authorities to get what they expect, and ‘[d]isciplinary proceedings against lawyers in large and even medium-sized firms are very rare.’

In pitfalls perspective, disciplinary law governs private-sector lawyers interstitially, fitting itself into some spaces where the economic power of wealthy clients does not reach. Over the next several years, young lawyers in this scrutinised cohort will respond to discipline more from the market rather than the bar. Disciplinary law will leave most of them undisturbed for their entire careers, but those who give offence in a way that cannot be redressed by an economic weapon — that is, termination of their employment, or a threat thereof — may find themselves in its sights. The sanctions apparatus gives pitfalls-power to affronted third parties, aggrieved clients with more spunk than money, enforcers of public law who are willing to report violations incidentally, and other initiators who are not situated to control errant lawyers by threatening to withdraw their custom.

As positive law, then, disciplinary rules unite the legal profession under universal conditions of danger and opportunity. Economically privileged lawyers find that nonenforcement, or at most underenforcement, characterises almost every rule on the books — or, as David Wilkins has put the point, regulators interpret disciplinary rules to ‘mirror the norms of the marketplace.’ Lawyers outside the reach of client-initiated market discipline experience danger in disciplinary law. This message, which emerges by degrees in a pitfalls pedagogy, may sound cynical at first to students, but it affirms an ideal: What makes the lawyer’s vulnerable license vulnerable is the willingness of the disciplinary system to extend power beyond the wealthy.

Civil liability is a pitfall of underreported dimension within the profession generally, not just in legal education. One major segment of civil liability, actions by clients and third parties for legal malpractice, remains especially hidden from view.

Students who proceed through law school and then graduate without learning anything about legal malpractice may suppose they will be shielded from their ignorance.

A pitfalls-sensitive pedagogy for legal malpractice would share an array of warnings. Foremost, it could tell students that the set of individuals and entities that can bring actions against them is not limited to what they regard as the roster of their own retained clients. A related pitfall of civil liability emerges from agency law and fiduciary principles, which for some students will come up in no other classroom venue. The agency/fiduciary pitfall is the occasional obligation to put another’s interests ahead of one’s own or to proceed without seeking gain for oneself or a third party. Despite having typically studied contract law, students enrolled in a professional responsibility course may not have encountered doctrines imposing private-law liability on an actor who intended no harm, breached no overt agreement, or caused no harm to any victim.

Federal courts have upheld convictions for an array of crimes that lawyers committed while representing clients, including obstruction of justice, false swearing, perjury, suborning perjury, aiding and abetting, securities fraud, and mail fraud. Similar pitfalls for lawyers appear in state criminal law. The pitfall grows larger in those jurisdictions where conviction of a felony triggers automatic disbarment.

In a pitfalls pedagogy, obstruction of justice warrants particular attention because of the unique vulnerabilities inherent in the practice of criminal defence law. Most of the time lawyers, like nonlawyers, stay clear of criminal prosecution by heeding their own inclinations to honesty and prudence. For a criminal defence lawyer, however, this crime is relatively hard to avoid violating. To start, it is vague. Vaguely worded criminal statutes jeopardise anyone who can be prosecuted for their violation, but as a crime obstruction of justice particularly menaces criminal defence lawyers because thwarting the prosecutorial apparatus — or standing against ‘justice,’ as the word appears the name of this crime — is part of their job, and because it empowers their adversaries as enforcers against them.

A defendant convicted of a crime following ineffective assistance of counsel may be entitled to a new trial or the withdrawal of an ill-advised guilty plea. Lack of competence is a disciplinary offence in the Model Rules, and the ABA recommends the disbarment of any lawyer whose ‘course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures’ if this lawyer’s conduct causes injury to a client.

Some observers would call the risk of disgrace for incompetent or ineffective work not half strong enough.

New lawyers ought to know that a habeas claim alleging ineffective assistance of counsel will probably fail; that courts generally do not hear claims of ineffective assistance on appeal, only collaterally, forcing a defendant to spend years exhausting the appellate route before being heard; that whether a lawyer suffers adverse consequences after injuring a client through incompetent work will depend largely on whether a client sues her for malpractice; and that this profession produces, shares, and acts on very little publicly available information about whether a particular lawyer possesses minimal competence.

The Langdellian emphasis on what judges decide still pervades American legal education, and will likely remain central there, even if reformers who want to teach something else — drafting, business planning, transactions, negotiation, alternative dispute resolution, the deployment and understanding of statutes, extrinsic subjects like economics, and so on — continue to expand their influence.

As instruction for lawyers who will practice before judges, what this hierarchical-institutional view of the courts omits is the function of the judge as antagonist. Both her power and her lack of power can get in a lawyer’s way. A litigator might manipulate her. When it robes the judge in at least detachment, if not pure neutrality, a pedagogy without pitfalls leaves students unprepared.

Entry into this profession can curb an individual’s freedoms and prerogatives.

Examining the ways in which freedom of speech or freedom of association grants lawyers fewer safeguards from government control than what their fellow citizens have becomes, in this pitfalls pedagogy, a challenge to under-questioned dogma.

The profession extols silence for lawyers in numerous rules and norms.

Other speech-related rules that have escaped First Amendment scrutiny may be seen in pitfalls terms. Take confidentiality. Rules in every jurisdiction order lawyers to keep silent about at least some confidential information pertaining to their clients.

At the same time, the rule about suppressing confidential information endangers lawyers too. When the information in question relates to dangers that threaten third parties, neither silence nor revelation will necessarily keep an advocate out of trouble.

Coffers of gloom at any law school are probably flush long before any pitfalls pedagogy arrives. Law students suffer from depression at a higher rate than the general population and researchers attribute some of their symptoms of distress to their law school experience rather than their preexisting mental condition. Anxiety –over job searches, loan repayment prospects, a sense of foreclosed opportunities — is rife inside law schools. Students often perceive employers as categorically disdaining the bottom half, or even the bottom nine-tenths, of their ranked class.

Concealment of professional unpleasantness ahead is impossible. Candour about these facts of occupational life, however, constitutes forewarning: and both by their temperament and the design of the larger curriculum, law students are well positioned to become forearmed when forewarned.

Pitfalls pedagogy, focusing on similar concerns about efficacy in practice, takes a differing view of risk as law students and lawyers perceive it.

Pitfalls are more than figurative potholes. They offer opportunities.

One problem with the mandate requiring instruction in professional responsibility is that it has imposed an anomalous course and a burdensome teaching assignment. Most law schools omit it from their set of first-year requirements and compel students to take the course in the semester of their choice between completion of the first-year offerings and graduation. This placement away from most other requirements forces the course to compete for esteem in the schedule with ones that students take because they are interested in a subject. No other law school course is regarded, by students and schedule-planners alike, as this much of a chronic nuisance, and instructors who teach the class have been resenting its unpopularity in print for years.

Pitfalls can assuage the unpopularity problem by bringing Professional Responsibility in line with other law school courses. Elsewhere on the schedule, students learn that dangers and obstacles occupy virtually every corner of the law. Because references to pitfalls make this class look more like its peers, the burden of being an anomaly in the eyes of student-consumers is eased. Once students perceive that this class really does belong on their schedule, those who teach it are less burdened by challenges to the legitimacy of their material, and become better positioned to advance other pedagogical aims beyond pitfalls.

Pitfalls are always relevant to ethics in the practice of law.

Some instructors might feel more comfortable covering ethics by, so to speak, rushing to judgement: they would truncate analysis by asking the class to condone or condemn an outcome. Yet by inviting participants to take the role of a lawyer and, with this role, a sense of dangers, this pedagogy starts with the particulars necessary for thorough evaluation.

The philosophical tradition classifies ethics for lawyers under the aegis of normative ethics (rather than the more abstract and removed ‘metaethics’), also known as ‘morals’ or ‘substantive ethics,’ whose endeavour may be stated in the overlapping questions it asks and seeks to answer: What is right and wrong? What is blameworthy and praiseworthy? What is desirable or worthwhile? How should we live?

When considering problems of ethics, the professional-responsibility tradition is to look at two sources in the philosophical tradition: ‘competing alternative visions of moral theory, dividing largely along consequentialist and deontological lines,’ or ‘utilitarianism and Kant’s categorical imperative.’ Putting the terms consequentialism and utilitarianism together for this purpose, we can readily identify the value of using pitfalls to convey fidelity to the prescriptions of utilitarianism. Teaching rules to students through a utilitarian lens invokes rule utilitarianism, which invites judgements of a rule with reference to the criterion of how much good will occur when the rule is followed.

Virtually every rule of professional conduct is amenable to analysis of this kind, and a pitfalls approach makes the study concrete.

The sometimes controversial developmental theorist Lawrence Kohlberg can make a noncontroversial contribution to a study of pitfalls as pedagogy. The lesson from Kohlberg is that human beings move from the preceding two stages of moral development, united as ‘preconventional morality,’ to the conventional-morality understanding that they are members of society.

The pitfalls pedagogy, presented here as a graduate-level technique to teach intelligent and motivated adults, rests on the earliest stage of moral development, Stage 1, the level characterised by an ‘obedience and punishment orientation.’

The pitfalls approach serves as both a pedagogy of its own and a device that supports other approaches in the classroom. Experienced and distinguished instructors have published an array of strategies for the course that make reference to occupational hazards but do not focus on them explicitly as pitfalls.

Just as clinical legal education generally delivers instruction in the form of student experiences, clinical legal education about pitfalls presents burdens, dilemmas, and tough questions to students as action items that need action now, by them.

Some instructors applaud the theory-and-practice pedagogy of a law school clinic as a vehicle for teaching ethics yet insist that clinics alone cannot cover the subject: for them, simulations or scripted experiences have the real-time, trenches-like advantages of clinical education at a somewhat lower cost and with much more instructor control.

For any course, the pervasive method of instruction would begin with pitfalls from the law of lawyering, and then link these dangers to the substantive ends that a particular body of law pursues. The study necessarily encounters collisions.

The pervasive method is stellar — much better than a stand-alone course — at remembering that issues of professional responsibility arise when a lawyer is trying to do something else.

This approach to teaching professional responsibility, as announced by leaders of the Stein ethics centre at Fordham Law School, calls for ‘a new genre of courses’ to ‘join the pervasive method and the traditional survey course.’

The Fordham experience nicely illustrates two sides of the danger/opportunity coin by noting the function of student choice in fulfilling the graduation requirement: not being forced into the unitary survey course gives students a sense of freedom to follow their own interest, but also a worry that they have chosen the wrong context or opted too soon for specialisation; instructors and curriculum designers savour the chance to dig deeper but wonder whether they are failing to convey some urgent point that the survey course would have had time to cover.

Nathan Crystal urges instructors and students of professional responsibility to reflect on what he sees as an imperative to each lawyer: to form ‘a philosophy of lawyering’ that guides the lawyer through dilemmas that are ‘not clearly answered by the rules of professional conduct or the law governing lawyers,’ brings together the lawyer’s professional role and personal life, and involves the lawyer ‘in institutional issues facing the profession.’

Several commentators commend the teaching of professional responsibility in a sociological context. Never having tried the sociological approach in the classroom myself, I have the sense that it may appear to eschew pitfalls but actually sees them everywhere in this profession. Attention to groups and systems rather than individuals may seem static to outsiders habituated to think of change or stress as originating in a person’s consciousness. This individualistic cohort may be refreshed to read legal sociologists who disagree, attributing stasis and resistance to misguided beliefs about ‘individual professional autonomy.’

In the classroom, speaking about pitfalls offers small building blocks that an instructor can assemble to create a structure of considerable loft. Without the guidance of pitfalls for individual lawyers, this topic is a place for students to get lost in the mists of pseudo-algebra: ‘Okay, lawyer L in firm X represents corporation C, and now attorney A, the partner of lawyer L in firm X, wants to represent business B ...’

The pitfalls pedagogy gives law students a vantage point from which they can see any topic of professional responsibility as a quick prod for a lawyer, and also in all its depth. By talking about problems for lawyers as sources of strategy and strength and commending vigour in response to a setback, it combats the tendency to anxiety and unhappiness that sometimes wafts through law schools. Making reference to pitfalls functions as an approach of its own to professional responsibility and also an adjuvant to other designs for teaching the subject. Because other courses and experience in the law school curriculum also teach pitfalls, this pedagogy unites the mandated course with other classes of the curriculum (thereby relieving instructors of the isolation of which they complain), while also bringing together the disparate mélange of classes and educational experiences that fills contemporary American legal education.