Pitfalls ahead: A manifesto for the training of lawyers

Cornell Law Review

Volumn 94, Issue 2, 2009, Pages 479-518

  Bernstein, Anita ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 60449093566     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (180)

1. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 2 (3d prtg. 1995).
2. Id.
3. See Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112, 113-14 (2002).
4. See JEAN STEFANCIC & RICHARD DELGADO, HOW LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS 62-64 (2005) (discussing malaise, intellectual confusion, and stifling of creative thought); Robert P. Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students, 45 S. TEX. L. REV. 753, 764-65 (2004) (discussing clinical depression).
5. See Jason M. Dolin, Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession, 44 CAL. W. L. REV. 219, 238-43 (2007); Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 AM. U. J. GENDER SOC. POL'Y& L. 511, 520 (2005).
6. See Bonita London et al., Psychological Theories of Educational Engagement: A Multi- Method Approach to Studying Individual Engagement and Institutional Change, 60 VAND. L. REV. 455, 469-79 (2007) (reporting on a psychological study that found significant alienation in the law school environment, particularly among minority students).
7. See Benjamin H. Barton, The ABA, the Rules, and Professionalism: The Mechanics of Self- Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons, 83 N.C. L. REV. 411, 422 (2005). Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 MINN. L. REV. 705 passim (1998).
8. See Bridget A. Maloney, Distress Among the Legal Profession: What Law Schools Can Do About It, 15 NOTRE DAME J.L. ETHICS & PUB. POL'Y 307, 310-16 (2001) (reviewing psychological studies of law students' perceptions of coldness and hostility in their school environment).
9. See Barton, supra note 7, at 414 (finding "at least four related but distinct crises listed in these various accounts of the Job-like woes of the legal profession").
10. The most commonly cited summaries of these findings were written by Professors Susan Daicoff and Patrick J. Schlitz. Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 AM. U. L. REV. 1337, 1346-47 (1997); Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871, 873-80 (1999). But see Kathleen E. Hull, Cross-Examining the Myth of Lawyers' Misery, 52 VAND. L. REV. 971 passim (1999) (responding to Schiltz); Robert Nelson, The AJD Project: The First National Longitudinal Study of Lawyer Careers, 36 SW. U. L. REV. 355, 361 (2007) (reporting on studies that found an unexpectedly high level of lawyer satisfaction).
11. Alan A. Stone, Legal Education on the Couch, 85 HARV. L. REV. 392 passim (1971).
12. George B. Shepherd & William G. Shepherd, Scholarly Restraints'? ABA Accreditation and Legal Education, 19 CARDOZO L. REV. 2091, 2252 (1998); see also George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA's Accreditation of Law Schools, 53 J. LEGAL EDUC. 103, 104-08 (2003) (blaming ABA accreditation for preventing African-Americans from entering the legal profession). William Shepherd, like George Shepherd, is an economist.
13. See Duncan Kennedy, How the Law School Fails: A Polemic, 1 YALE REV. L. & SOC. ACTION 71 (1970).
14. Amsterdam called the problem of declining student interest the MOPIE Syndrome, an acronym for Maximum Obtainable Passivity In Education. GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 1019 (4th ed. 2005) (citation omitted).
15. See LANI GUINIER ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE 7-8 (1997) (reviewing reports of gender-specific responses to law school); Sari Bashi & Maryana Iskander, Why Legal Education is Failing Women, 18 YALE J.L. & FEMINISM 389, 391 (2006) ("Despite gender parity in entering J.D. classes, law schools are not adequately preparing female law students for success, particularly in the upper ranks."); Autumn Mesa, A Woman's Climb up the Law School Ladder, 9 CARDOZO WOMEN'S L.J. 379, 389 (2003) (claiming that "feelings of low self-esteem, inferiority, self-doubt, alienation, depression, and anxiety that affect many of the women attending America's law schools should be a signal that sexism continues to lurk in the law school halls and continues to preserve the hierarchical structure that places women in the lower tiers").
16. See Dan Subotnik, The Cult of Hostile Gender Climate: A Male Voice Preaches Diversity to the Choir, 8 U. CHI. L. SCH. ROUNDTABLE 37, 40 (2001).
17. THE AFFECTIVE ASSISTANCE OF COUNSEL: PRACTICING LAW AS A HEALING PROFESSION (Marjorie A. Silver ed., 2007).
18. LINDA HRSHMAN, A WOMAN'S GUIDE TO LAW SCHOOL 273 (1999) (urging female law students to demand more using a "Questionnaire for Deans"). On the author's pugnacity, see the contentiously received LINDA R. HIRSHMAN, GET O WORK: A MANIFESTO FOR WOMEN OF THE WORLD (2006).
19. See Paula A. Franzese, To Be the Change: Finding Higher Ground in the Law, 50 ME. L. REV. 11, 15 (1998); see also Paula A. Franzese, E Pluribus Unum-From Many, One: In Unity There is Strength, 25 SETON HALL L. REV. 1460, 1465 (1995) (excerpting a speech before the New Jersey Ocean County Bar Association (May 1, 1995)) ("Let us embrace each other, so that together we nurture strength of spirit and peace of mind.").
20. STEFANCIC & DELGADO, supra note 4, at 29-30.
21. Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222, 226-28 (1984).
22. 2007-2008 STANDARDS FOR APPROVAL OF LAW SCHOOLS, ch. 3, Standard 302(a)(5) [hereinafter ABA STANDARDS], available at http://www.abanet.org/legaled/ standards/20072008StandardsWebContent/Chapter%203.pdf. The other apparently mandatory element in the curriculum is legal writing, but the ABA remains vague about what exactly this requirement means. See id. Standard 302(a) (3).
23. Id. interpretation 302-9.
24. I echo the leading work that undertook to find reasons for an ABA mandate, written during the transition from the Model Code to the Model Rules. Deborah L. Rhode, Why the ABA Bothers:. A Functional Perspective on Professional Codes, 59 TEX. L. REV. 689 passim (1981).
25. Although I consider this question in the context of the required course on professional responsibility, much of what I describe or conclude also pertains to other law school courses.
26. It may bear mentioning that to the extent that legal education prepares students for practice, this preparation will vary from student to student, in response to individual circumstances and career plans. The professional responsibility course is a suitable venue to anticipate needs that pervade all, or most, categories of work for lawyers.
27. See James E. Moliterno, Legal Education, Experiential Education, and Professional Responsibility, 38 WM. & MARY L. REV. 71, 101 (1996) ("Legal education is, at the end of the day, professional education.").
28. Jason Dolin argues, as does this Essay, that improvements in preparation-education will improve satisfaction for students. Dolin, supra note 5, at 235-42. He focuses on encouraging legal educators to heed the recommendations of the 1992 MacCrate report. Id. at 235.
29. See DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 1-3 (4th ed. 2004) (observing that both the substantive law of lawyering and empirical information about the profession have mushroomed in recent decades, redeeming the course from its past irrelevance). On teaching dangers and opportunities for lawyers, see generally Carol Rice Andrews, Highway 101: Lessons in Legal Ethics that We Can Learn on the Road, 15 GEO. J. LEGAL ETHICS 75 passim (2001) (analogizing the study of professional responsibility to learning how to comply with the law while driving).
30. Here I follow the convention that all attorneys are lawyers but not all lawyers are attorneys: a lawyer is a person trained to give legal advice, whereas an attorney is a lawyer who advocates for a client.
31. On the relation between role-taking and legal doctrine, see Anita Bernstein, How Can a Product Be Liable?, 45 DUKE L.J. 1, 29-30 (1995).
32. HAZARD ET AL., supra note 14, at lxv.
33. The Restatement of the Law Governing Lawyers gives pride of place to pitfalls, installing this warning in its Section One: "Upon admission to the bar of any jurisdiction, a person becomes a lawyer and is subject to applicable law governing such matters as professional discipline, procedure and evidence, civil remedies, and criminal sanctions." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 1 (1998).
34. See infra Part II.
35. See Todd v. Ligon, 148 S.W. 3d 229, 232 (Ark. 2004) (noting the five-year suspension of former President Clinton from the Arkansas bar); In re Nixon, 385 N.Y.S. 2d 305, 307 (N.Y. App. Div. 1976) (ordering disbarment of the former President). When his Arkansas suspension expired in January 2006, President Clinton took no steps to be reinstated, either in Arkansas or at the Supreme Court Bar. Andrew Glass, Gonzales Joins List of Conflicted Predecessors, POLITICO, Aug. 28, 2007, http://www.politico.com/ news/stories/0807/5540.html.
36. Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 GEO. J. LEGAL ETHICS 1, 1 (2007) (noting that state disciplinary agencies formally sanction only about 5,600 lawyers per year, despite receiving more than 125,000 lawyer discipline complaints per year).
37. See generally Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491 (1985) (describing and offering a reconsideration of the bar's moral character requirement).
38. The claim of unfairness is that the bar looks closely at new applicants while turning a blind-or at most an indulgent-eye to much misconduct that established lawyers commit. See id. at 546-50.
39. ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standard 2.8(g) (1986).
40. Id. Standard 1.1.
41. The State Bar of California, Priorities and Prevention, http://calbar.ca.gov/state/calbar/calbar-generic.jsp?cid=10136&id=1647 (last visited Oct. 23, 2008).
42. See, e.g., Ky. Bar Ass'n v. Guidugli, 967 S.W. 2d 587, 589 (Ky. 1998) (suspending an admitted attorney practicing law for 30 days for failure to disclose a material fact on his bar application); Layon v. N.D. State Bar Bd., 458 N.W. 2d 501, 512 (N.D. 1990) (denying admission to the North Dakota bar).
43. See generally Symposium, What Do Clients Want?, 52 EMORY L.J. 1053 (2003) (addressing neglect, failure to communicate, and failure to represent clients diligently, the disciplinary offenses that dominate enforcement even though rich clients, who presumably have good access to bar authorities, almost never bring complaints about them).
44. Elizabeth Chambliss, Professional Responsibility: Lawyers, A Case Study, 69 FORDHAM L. REV. 817, 820 n. 17 (2000). A leading casebook notes the epiphenomenon of "private discipline," where large law firms impose sanction-like suspensions on their associates for relatively minor infractions. See STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 838 (6th ed. 2002).
45. Discipline is especially rare during the first ten years of admission to the bar. HAZARD ET AL., supra note 14, at 1148 (reporting a study that indicated 82 percent of disciplined lawyers had been in practice more than eleven years).
46. See Chambliss, supra note 44, at 819-20.
47. David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 867 (1992).
48. Manuel R. Ramos, Legal Malpractice: The Profession's Dirty Little Secret, 47 VAND. L. REV. 1657, 1658 (1994).
49. Id. at 1658-59 (internal citations omitted).
50. Id. at 1661.
51. See GILLERS, supra note 44, at 766 (describing an increase in claims against lawyers, from 22, 838 claims in 1990-95 to 35,678 in 1996-99).
52. Some states explicitly immunize public defenders from malpractice liability. See Amanda Myra Hornung, Note, The Paper Tiger of Gideon v. Wainwright and the Evisceration of the Right to Appointment of Legal Counsel for Indigent Defendants, 3 CARDOZO PUB. L. POL'Y & ETHICS J. 495, 531-33 (2005). On the futility of bringing malpractice actions against criminal defense lawyers, see, for example, Wiley v. County of San Diego, 966 P. 2d 983, 991 (Cal. 1998) (imposing a requirement that the defendant prove innocence to establish malpractice); Peeler v. Hughes & Luce, 909 S.W. 2d 494, 498 (Tex. 1995) (rejecting a malpractice claim after a lawyer failed to relay an offer of transactional immunity that would have avoided the plaintiffs criminal conviction).
53. Presumably informed by experience, one provider of legal malpractice insurance wrote a primer to ease this population out of complacency. See Douglas R. Richmond, Professional Responsibilities of Law Firm Associates, 45 BRANDEIS L.J. 199 (2006).
54. RESTATEMENT (THIRD) OF AGENCY § 8.02 cmt. b, illus. 2 (2005).
55. See Klemme v. Best, 941 S.W. 2d 493, 496 (Mo. 1997) (en banc) (holding that a lawyer can be liable for breach of fiduciary duty without proof of unlawful intent).
56. See Estate of Keatinge v. Biddle, 316 F.3d 7, 8-9 (1st Cir. 2002) (noting that under Maine law, an attorney-client relationship can exist despite an attorney's denial of the relationship).
57. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 55 cmt. d (1998) ("[I]f a lawyer mistakenly deposits a client's money in[to] the lawyer's own bank account and proceeds to invest it and make a profit, the client is entided to restitution of the original sum and the profits from its investment.") (citations omitted).
58. See HAZARD ET AL., supra note 14, at 26-46 (reviewing cases that upheld prosecutions of attorneys under both federal and state criminal law); see also STEPHEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 651-83 (2008) (titling a chapter "Federal Provisions on Conflicts, Confidentiality, and Crimes").
59. See MISS. CODE ANN. § 73-541 (West 2004); N.Y. JUD. LAW § 90.4.a (McKinney 2002); see also Laughlin v. United States, 474 F. 2d 444, 447 (D.C. Cir. 1972) (interpreting D.C. law to make disbarment following a felony conviction mandatory).
60. See Bruce A. Green, The Criminal Regulation of Lawyers, 67 FORDHAM L. REV. 327, 328-29 (1998).
61. SEE Roberta S. Karmel, Professor of Law, Brooklyn Law Sch., Panel Discussion: The Evolution of Corporate Governance (Nov. 22, 2002), in Symposium, The Evolving Legal and Ethical Role of the Corporate Attorney After the Sarbanes-Oxley Act of 2002, 52 AM. U. L. REV. 613, 634 (2003).
62. Ted Schneyer, Professional Discipline for Law Firms?, 77 CORNELL L. REV. 1, 44 n. 271 (1991).
63. See, e.g., Wiggins v. Smith, 539 U.S. 510, 538 (2003) (invalidating a capital conviction on the ground of ineffective assistance at trial); Rollins v. State, 591 S.E. 2d 796, 799-800 (Ga. 2004) (permitting petitioner to withdraw the guilty plea that she had chosen to make after receiving ineffective assistance).
64. Edmund B. Spaeth, Jr., To What Extent Can a Disciplinary Code Assure the Competence of Lawyers?, 61 TEMP. L. REV. 1211, 1220 (1988) (noting that the rule on competence is Rule 1.1, "the place of honor").
65. ABA STANDARDS fOR IMPOSING LAWYER SANCTIONS, Standard 4.5.1 (1991).
66. 466 U.S. 668 (1984).
67. E.g., Burger v. Kemp, 483 U.S. 776, 777-78 (1987) (holding that a lawyer's lack of investigation into mitigating evidence for a capital sentencing hearing did not violate the defendant's Sixth Amendment rights); Burdine v. Johnson, 262 F.3d 336, 338 (5th Cir. 2001) (en banc) (condoning the "assistance" of a lawyer who slept during a trial; the defendant ultimately received a death sentence); Smith v. Ylst, 826 F. 2d 872, 873-74 (9th Cir. 1987) (denying an ineffective-assistance claim on the ground that the defendant failed to show any prejudicial effect of his lawyer's having experienced a documented "paranoid psychotic reaction" during his trial).
68. See Susan R. Martyn, Lawyer Competence and Lawyer Discipline: Beyond the Bar?, 69 GEO. L.J. 705 passim (1981) (surveying pre-Model Rules disciplinary case law).
69. See id. at 732 ("Perhaps because of the void in self-regulation, market sanctions in the form of malpractice suits have become the primary method by which standards of care are defined.") (citation omitted); see also GILLERS, supra note 44, at 743-45 (noting that lawyers are seldom disciplined for their lapses of competence). Lawyers who represent defendants in capital cases "are virtually guaranteed" an accusation of ineffective assistance at some point, see David M. Siegel, My Reputation or Your Liberty (or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings, 23 J. LEGAL PROF. 85, 90-91 (1999), but for purposes of this Essay, "virtual[]" guarantees are not considered pitfalls.
70. See Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELL L. REV. 679, 680 (2007).
71. Levin, supra note 36, at 21-22.
72. HAZARD ET AL., supra note 14, at 910 (surveying the debates on what constitutes unauthorized practice, which swirl around one uncontroversial, centuries-old tenet: "that a nonlawyer could not appear in court to represent another person").
73. Judges hold other kinds of power over the legal profession, notably through their prerogative to adopt rules of professional responsibility. This section addresses potential clashes between a lawyer and judge in the courtroom.
74. The Supreme Court first recognized this power in Link v. Wabash Railroad Co., 370 U.S. 626, 630-32 (1962). The Restatement remarks that judges have used inherent powers to assert "extravagantly broad" authority over lawyers. RESTATEMENT (THIRD) OFCTHE LAW GOVERNING LAWYERS § 1, Reporter's Note on cmt. c (1998).
75. GILLERS, supra note 44, at 759 (summarizing cases).
76. See, e.g., In re Goldstein, 430 F.3d 106, 110 (2d Cir. 2005) (approving fee reduction); Guralnick v. Supreme Court of N.J., 747 F. Supp. 1109, 1118 (D.NJ. 1990) (approving mandatory fee arbitration rules promulgated by the New Jersey Supreme Court).
77. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 496 (1986).
78. See Leah Epstein, Comment, A Balanced Approach to Mandamus Review of Attorney Disqualification Orders, 72 U. CHI. L. REV. 667, 667 & n. 3 (2005).
79. See id. at 673-78 (summarizing case law and commentary).
80. For an endorsement of the abstemious latter path that pays due heed to arguments favoring the former, see Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 FORDHAM L. REV. 71, 84-98 (1996).
81. Epstein, supra note 78, at 669-70.
82. See 28 U.S.C. § 455 (2006) (providing disqualification rules for federal judges); MODEL CODE OF JUDICIAL CONDUCT R. 2.11 (2007) (providing model rules on disqualification of state judges). For an extended argument that this informality and ad hoc decision making needs repair in the form of more determinate procedural reforms, see Amanda Frost, Keeping Up Appearances: A Process-Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531 (2005).
83. See 28 U.S.C. § 455(b) (requiring judicial recusal if, among other things, the judge has a personal bias or if the judge worked on the matter in private or government practice).
84. See MODEL RULES OF PROF'L CONDUCT RR 7.1-7.3 (2007).
85. See Bates v. State Bar of Ariz., 433 U.S. 350, 379-82 (1977). The commercial speech era began with Virginia State Board of Pharmacy v. Virgina Citizens Consumer Council, 425 U.S. 748 (1976).
86. See William E. Hornsby, Jr. & Kurt Schimmel, Regulating Lawyer Advertising: Public Images and the Irresistible Aristotelian Impulse, 9 GEO. J. LEGAL ETHICS 325, 327-28 (1996) (describing increases in scrutiny and skepticism toward advertising from bar authorities in the wake of liberalization from the Supreme Court).
87. *2-5 (E.D. Pa. Jan. 5, 2001) (applying the Lanham Act to lawyers' advertising); Comm. on Prof 1 Ethics & Conduct v. Humphrey, 377 N.W. 2d 643, 647 (Iowa 1985) (approving detailed restrictions for broadcast advertisements); Office of Disciplinary Counsel v. Shane, 692 N.E. 2d 571, 573-74 (Ohio 1998) (per curiam) (reprimanding lawyers for an advertisement because it did not tell potential clients that clients are technically responsible for the costs of litigation).
88. See, e.g., FLA. RULES OF PROF'L CONDUCT R. 4-7.7 (2007) (requiring filing advertisement with the Florida Bar no later than the first dissemination); MISS. RULES OF PROF'L CONDUCTR. 7.5 (a) (2007) (requiring submission of proposed advertisements to the Office of the General Counsel of the Mississippi Bar).
89. I elaborate in Sanctioning the Ambulance Chaser, 41 LOY. L.A. L. REV. (forthcoming 2008).
90. See MODEL RULES OF PROF'L CONDUCT R. 7.3(a) (2007) (permitting solicitation of a new prospective client when the person solicited is a lawyer or a person who has a prior relationship with the lawyer, unless the lawyer's "significant motive" for the solicitation is his or her own pecuniary gain).
91. See id. R. 3.6. The First Amendment-based revisions to this rule derive from Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
92. MODEL CODE OF JUDICIAL CONDUCT Canon 4 (2008).
93. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(5).
94. For example, under the Model Rules, a lawyer who knows that misconduct by her client threatens a third party with financial ruin may not reveal the misconduct unless the client used the lawyer's services to further it. Id. R. 1.6(b)(3). By contrast, when lawyers assert or defend their own interests, they can reveal all the confidential information they want, limited only by the thin proviso that they confine revelation to what they "reasonably believes [is] necessary" to assert or defend these interests. Id. R. 1.6(b)(5). For a critique of this inconsistent stance toward client secrets and confidences, see Henry D. Levine, Selfinterest or Self-Defense: Lawyer Disregard of the Attorney-Client Privilege for Profit and Protection, 5 HOFSTRA L. REV. 783, 785-86 (1977).
95. For an overview of this battleground, see Robert N. Rapp, Sarbanes-Oxley and SEC Standards of Professional Conduct, 57 CASE W. RES. L. REV. 365, 367-68 (2007).
96. *16-17 (Mass. Comm. Discrim. Feb. 25, 1997) (sanctioning a lawyer for attempting to maintain a women-only client base for her matrimonial practice); MODEL RULES OF PROF'L CONDUCT R. 1.8(j) (prohibiting a lawyer from having sex with a client unless a consensual sexual relationship preceded the representation).
97. Mercer wrote the lyrics and Harold Arlen the music for the Academy Award-nominated "Ac-Cent-Tchu-Ate the Positive." See Richard Harrington, Still Another Indictment of Bad Frankie, CHI. SUN-TIMES, June 5, 2005, at 5, LexisNexis Academic (commending, as does this Essay, the opposite of this advice).
98. See supra notes 1-19 and accompanying text.
99. Neufeld, supra note 5, at 552 & n. 123.
100. Ruth Ann McKinney, Depression and Anxiety in Law Students: Are We Part of the Problem and Can We Be Part of the Solution?, 8 J. LEGAL WRITING INST. 229, 229-30 (2002).
101. For guarded endorsements of this proposition, see Richard L. Hasen, The Efficient Duty to Rescue, 15 INT'L REV. L. & ECON. 141, 144, 149 n. 12 (1995); Jonathan R. Macey, Lawyers in Agencies: Economics, Social Psychology, and Process, 61 LAW & CONTEMP. PROBS. 109, 110-11 (1998).
102. A 1990 study found that in all graduate fields of study except law, optimists perform better than pessimists. Richard G. Uday, That Frayed Rope, 16 UTAH B.J. 8, 9 (2003). One commentator supports the risk-averse construct with evidence that the profession has historically resisted technological innovation, notably the telephone at the end of the nineteenth century. Catherine J. Lanctot, Regulating Legal Advice in Cyberspace, 16 St. JOHN'S J. LEGAL COMMENT. 569, 570 (2002). For a law professor's skepticism about the utility of risk utility as a concept, see Victor Goldberg, Columbia Sch. of Law, Risk Management Round Table: Aversion to Risk Aversion (Apr. 12-13, 2002), http://www.ldeo.columbia. edu/chrr/documents/meetings/roundtable/pdf/notes/goldberg-vic-note.pdf.
103. See Susan Sturm & Lani Guinier, The Law School Matrix: Reforming Legal Education in a Culture of Competition and Conformity, 60 VAND. L. REV. 515, 534 (2007) (lamenting that the authors' innovations demand "a level of intellectual and professional curiosity that is not cultivated by the current default (and often conformist) cultural stance of detached mastery, a stance that both distances students from the object of their learning and leads them to keep their options forever open"). On the lure of open options, see John Tierney, The Advantages of Closing a Few Doors, N.Y. TIMES, Feb. 26, 2008, at Fl.
104. Paul Brest & Linda Krieger, On Teaching Professional Judgment, 69 WASH. L. REV. 527, 541 (1994).
105. Id. at 540.
106. Id.
107. See Julie A. Oseid, It Happened to Me: Sharing Personal Value Dilemmas to Teach Professionalism and Ethics, 12 J. LEGAL WRITING INST. 105, 111-12 (2006) (contending that this belated placement causes law students to underrate the importance of the subject).
108. See Edward Rubin, What's Wrong with Langdell's Method, and What to Do About It, 60 VAND. L. REV. 609, 655-57 (2007) (noting the isolation of professional responsibility in the curriculum).
109. See John M. Conley, How Bad Is It, Out There? Teaching and Learning About the State of the Legal Profession in North Carolina, 82 N.C. L. REV. 1943, 1950-51 (2004); Roger C. Cramton & Susan P. Koniak, Rule, Story, and Commitment in the Teaching of Legal Ethics, 38 WM. & MARY L. REV. 145, 146-47 (1996) ("[L]egal ethics remains an unloved orphan of legal education. 'Serious scholarship' in legal ethics is still considered somewhat of an oxymoron. Many law school faculties remain convinced that the subject is unteachable or believe that it is not worth teaching.") (citations omitted); Mary C. Daly, Bruce A. Green & Russell G. Pearce, Contextualizing Professional Responsibility: A New Curriculum for a New Century, 58 LAW & CONTEMP. PROBS. 193, 195 n. 6 (1995) (quoting sources calling the class "a blowoff course," a "dog," and "hard to teach, disappointing to take, and often presented to vacant seats or vacant minds"); William H. Simon, The Trouble with Legal Ethics, 41 J. LEGAL EDUC. 65, 65-66 (1991); Dennis Turner, Infusing Ethical, Moral, and Religious Values into a Law School Curriculum: A Modest Proposal, 24 U. DAYTON L. REV. 283, 291-92 (1999).
110. See infra Part III.B.
111. Harvard Law Sch., Criminal Law 4, http://www.law.harvard.edu/academics/ courses/2008-09/?id=5194 (last visited Oct. 23, 2008).
112. Id. Contracts 1, http://www.law.harvard.edu/academics/courses/ 2008-09/?id=5260 (last visited Oct. 23, 2008).
113. Id. Civil Procedure 1, http://www.law.harvard.edu/academics/ courses/2007-08/? id=4719 (last visited Oct. 23, 2008).
114. Id. Property 1, http://www.law.harvard.edu/academics/courses/2007- 08/?id=4723 (last visited Oct. 23, 2008).
115. Id. Torts 1, http://www.law.harvard.edu/academics/courses/2008-09/ ?id=5181 (last visited Oct. 23, 2008).
116. See ABA STANDARDS, supra note 22, Standard 302 (a) (5); see also Andrews, supra note 29, at 96 n. 3 (distinguishing "legal ethics" from the rules of professional conduct); Linda S. Mullenix, Mass Tort As Public Law Litigation: Paradigm Misplaced, 88 NW. U. L. REV. 579, 584 n. 16 (1994) (estimating that the large majority of instructors teach "the course as a code course, or a 'lawyering' course, not an ethics course").
117. See supra notes 27-29 and accompanying text. For a cautionary note on conflating legal ethics with disciplinary rules and the law governing lawyers, see W. BRADLEY WENDEL, PROFESSIONAL RESPONSIBILITY: EXAMPLES AND EXPLANATIONS 4 (2004).
118. See, e.g., PAUL T. HAYDEN, ETHICAL LAWYERING: LEGAL AND PROFESSIONAL RESPONSIBILITIES IN THE PRACTICE OF LAW (2003); HAZARD ETAL., supra note 14 (entitled The Law and Ethics of Lawyering); LISA G. LERMAN & PHILIP G. SCHRAG, ETHICAL PROBLEMS IN THE PRACTICE OF LAW (2005); SUSAN R. MARTYN & LAWRENCE J. FOX, TRAVERSING THE ETHICAL MINEFIELD: PROBLEMS, LAW, AND PROFESSIONAL RESPONSIBILITY (2d ed. 2008).
119. WENDEL, supra note 117, at 3.
120. 3 ENCYCLOPEDIA OF PHILOSOPHY 118 (Paul Edwards ed., 1967).
121. See id. at 121.
122. Paul R. Tremblay, Acting "A Very Moral Type of God": Triage Among Poor Clients, 67 FORDHAM L. REV. 2475, 2505 n. 126 (1999).
123. Id. (citing MORTIMER D. SCHWARTZ ET AL., PROBLEMS IN LEGAL ETHICS 3-26 (4th ed. 1997)). For an argument that hewing only to these two traditions has impoverished the study of legal ethics, see Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885, 887-88 (1996) (arguing that the traditional dichotomy slights the contributions available from virtue ethics).
124. Tremblay, supra note 122, at 2505 n. 126 (quoting William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213, 225 (1991)).
125. THE PENGUIN DICTIONARY OF PHILOSOPHY 543-44 (Thomas Mautner ed., 2d ed. 2005).
126. See supra note 52.
127. *1-2 (M.D.N.C. May 9, 2003); Curto v. Smith, 248 F. Supp. 2d 132, 143 (N.D.N.Y. 2003); Fashion House, Inc. v. K Mart Corp., 124 F.R.D. 15, 22 (D.R.I. 1988).
128. See supra notes 67-69 and accompanying text.
129. 2 ENCYCLOPEDIA OF PHILOSOPHY, supra note 120, at 343.
130. IMMANUEL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSICS OF MORALS 18-19 (Thomas Kingsmill Abbott trans., Arc Manor 2008) (1785) (contending that the moral worth of an action cannot be measured by its consequences).
131. IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 15 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785).
132. See JACQUES THIROUX, ETHICS THEORY AND PRACTICE 47-48 (6th ed. 1998) (discussing Kant's attention to consequences); Bailey Kuklin, On the Knowing Inclusion of Unenforceable Contract and Lease Terms, 56 U. CIN. L. REV. 845, 848 n. 7 (1988) ("Certainly Kant noted consequences."); id. at 856 n. 30 (observing that in several writings Kant took "notice of the results of doing one's duty or even the results in determining one's duty"); David Luban, Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice, 49 MD. L. REV. 424, 440 (1990) (noting that "a Kantian applying the generalization test must look to the real-world consequences of a universal permission to act in a certain way").
133. George P. Fletcher, The Nature and Function of Criminal Theory, 88 CAL. L. REV. 687, 696 (2000).
134. See Anita Bernstein, Keep It Simple: An Explanation of the Rule of No Recovery for Pure Economic Loss, 48 ARIZ. L. REV. 773, 794 n. 113 (2006) (proposing to "put aside controversy- Kohlberg and stay within consensus-Kohlberg"). On the relevance of Kohlberg to understanding lawyers' ethics, see Elliott M. Abramson, Puncturing the Myth of the Moral Intractability of Law Students: The Suggestiveness of the Work of Psychologist Lawrence Kohlberg for Ethical Training in Legal Education, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 223 passim (1993).
135. Abramson, supra note 134, at 224.
136. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 18 (35th prtg. 1998).
137. RONALD DUSKA & MARIELLEN WHELAN, MORAL DEVELOPMENT: A GUIDE TO PIAGET AND KOHLBERG 45-47 (1975).
138. See generally Steven Harwell, Moral Growth or Moral Angst? A Clinical Approach, 11 CLINICAL L. REV. 115, 118-20 (2004) (describing the gap in legal pedagogy between conventional morality and postconventional morality, located beyond Stage Four).
139. I draw this conclusion from my own experiences of speaking and teaching at a range of law schools ranked in all four tiers of a notorious hierarchy.
140. See, e.g., Anthony V. Alfieri, Teaching Ethics/Doing Justice, 73 FORDHAM L. REV. 851, 857 (2004) (describing one clinic "devoted to the values of ethical judgment, professional responsibility, and public service in law and society") (citations omitted); William Berman, When Will They Ever Learn? Learning and Teaching From Mistakes in the Clinical Context, 13 CLINICAL L. REV. 115, 136 (2006) (emphasizing the relation between legal ethics and clinical education). Much of this literature comes from Canada, see Hartwell, supra note 138, at 143 n. 75, an unsurprising pedigree given the Canadian practice of requiring "articling," or apprenticeship, before a law school graduate can join the bar.
141. David Luban & Michael Millemann, Good Judgment: Ethics Teaching in Dark Times, 9 GEO. J. LEGAL ETHICS 31, 64 (1995).
142. Peter A. Joy & Robert R. Kuehn, Conflict of Interest and Competency Issues in Law Clinic Practice, 9 CLINICAL L. REV. 493, 572-78 (2002) (providing two appendices for clinics to share with enrolled students).
143. xhis "(not so) hypothetical situation" occupies much of the analysis in Laura L. Rovner, The Unforeseen Ethical Ramifications of Classroom Faculty Participation in Law School Clinics, 75 U. CIN. L. REV. 1113, 1121 (2007).
144. Dennis Turner notes that in clinics, time crunches arise if a student hurrying to finish a complaint or the preparation of a witness barely has time to reflect on ethics, and instructors lack control of the ethics issues that will reveal themselves over the academic year; moreover, high faculty/student ratios in clinics make these programs too expensive as a means to teach a required subject. Turner, supra note 109, at 292-93; see also Moliterno, supra note 27, at 116-17 (arguing that every educational advantage that clinics now deliver can be delivered better by a combination of simulations and externships). Experiential education gained national attention in March 2008 when Washington & Lee University School of Law announced that the third year of its J.D. program would henceforth be entirely experiential. See Dean Rod Smolla, Wash. and Lee Univ. Sch. of Law, A Message from the Dean, http://law.wlu.edu/thirdyear.
145. Moliterno, supra note 27, at 77.
146. Id. at 106.
147. Kenney F. Hegland, Jim's Modest Proposal, 38 WM. & MARY L. REV. 125, 128 (1996).
148. At one point Moliterno says as much. See Moliterno, supra note 27, at 105 (suggesting that the experiential mode in a torts or products liability class should emphasize "the potential pitfalls inherent in personal injury representation or insurance defense").
149. Hegland, supra note 147, at 131.
150. Moliterno, supra note 27, at 103-04.
151. See MICHAEL J. KELLY, LEGAL ETHICS AND LEGAL EDUCATION 8 (1980) (describing Harvard's "disdain" for teaching a single ethics course). For a survey of the same diemes in business education, see Thomas R. Piper, A Program to Integrate Leadership, Ethics, and Corporate Responsibility into Management Education, in CAN ETHICS BE TAUGHT? PERSPECTIVES, CHALLENGES, AND APPROACHES AT HARVARD BUSINESS SCHOOL 117, 117 (Thomas R. Piper et al. eds., 1993).
152. See DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD (2d ed. 1998).
153. University of San Francisco Center for Applied Ethics, How Do Others Teach?, http://www.usfca.edu/legalethics/methods.html (summarizing Rhode's method).
154. Rhode's sympathetic dean, to whom Ethics by the Pervasive Method is dedicated, reviews some of these difficulties in Paul Brest, The Alternative Dispute Resolution Grab Bag: Complementary Curriculum, Collaboration, and the Pervasive Method, 50 FLA. L. REV. 753, 754-55 (1998).
155. For accounts from people who have tried it, noting its limitations and its promise, see id. passim; Carrie Menkel-Meadow & Richard H. Sander, The "Infusion" Method at UCLA: Teaching Ethics Pervasively, 58 LAW & CONTEMP. PROBS. 129, 135 (1995).
156. This phrase comes from a casebook title. See HAZARD ET AL., supra note 14.
157. See RHODE, supra note 152, at 697-99.
158. Daly, Green & Pearce, supra note 109, at 193.
159. Id. at 202-06.
160. See Robert Granfield & Thomas Koenig, "It's Hard to Be a Human Being and a Lawyer": Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice, 105 W. VA. L. REV. 495, 520 (2003).
161. See Daly, Green & Pearce, supra note 109, at 200-01.
162. Granfield & Koenig, supra note 160, at 507-09, 523 (recommending that the course convey some of the "management strategies" recounted to the authors in their study of forty graduates of Harvard Law School asked to describe their own professional encounters with political power and social injustice).
163. NATHAN M. CRYSTAL, PROFESSIONAL RESPONSIBILITY: PROBLEMS OF PRACTICE AND THE PROFESSION 51 (3d ed. 2004).
164. Id. at xxv.
165. Nathan M. Crystal, Developing a Philosophy of Lawyering, 14 NOTRE DAME J.L. ETHICS & PUB. POL'Y 75, 94-97 (2000).
166. Crystal offered to withdraw the condition-of-licensing part of his proposal should critics deem it too much of an affront to lawyers' free speech rights. Id. at 101.
167. Id. at 86-92.
168. Id. at 96.
169. Id.
170. Id. at 98.
171. See Chambliss, supra note 44, passim; Ian Johnstone & Mary Patricia Treuthart, Doing the Right Thing: An Overview of Teaching Professional Responsibility, 41 J. LEGAL EDUC. 75, 85-86 (1991); Posting of Bill Henderson to Empirical Legal Studies, A Plug for the Economics and Sociology of the Legal Profession, http://www.elsblog.org/the- empirical-legal-studi/2006/04/a-plug-for-the-.html (Apr. 30, 2006, 9:09 EST).
172. See supra note 22 and accompanying text.
173. Chambliss, supra note 44, at 854.
174. See Robert L. Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors That Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation, 67 FORDHAM L. REV. 773, 794 (1998) (lamenting the tendency of managing partners at large law firms to regard attorney misconduct as an individual aberration); see also Chambliss, supra note 44, at 854 (identifying situational sources of unethical behaviors); Peter Margulies, The New Class Action Jurisprudence and Public Interest Law, 25 N.Y.U. REV. L. & Soc. CHANGE 487, 491 (1999) (referring to "the new institutionalism" to argue that rules "shape cognition and enact meaning").
175. Tom Lehrer, Be Prepared, on TOM LEHRER REVISITED (Warner Bros. & Reprise Records 1990).
176. See supra notes 1-2 and accompanying text (finding nostalgia in writings about the decline of the profession).
177. HAZARD ET AL., supra note 14, at 3.
178. See Schuwerk, supra note 4, passim (arguing that law professors owe their students fiduciary duties).
179. See supra notes 99-100 and accompanying text.
180. See supra Part III.B.