Monday, February 13, 2012
Yesterday, I posted on the need to distinguish between rules of professional conduct and professional identity. As we all know, lawyers frequently face disciplinary action. Is this mostly due to a failure to know the rules or a lack of professional identity--a general ethical failing?
In a recent post, Professor Michael Downey declared, "practical learning in legal ethics is critical. I started teaching trust accounting in my legal ethics courses after hearing a Colorado disciplinary counsel discuss that recent graduates were facing an increasing number of bar investigations when they overdrew their trust accounts. Considering that the economy is pushing many lawyers to smaller firms or solo practices, knowledge of trust accounting can be crucial, particularly when mishandling client funds may result in prompt, catastrophic discipline."
Although I applaud Professor Downey for stressing practical learning in legal ethics, I wonder whether mishandling client funds is usually due to a failure to know the rules or a lack of professional identity. Professor David Thomson has defined professional identity as "one’s own decisions about [professional] behaviors. . . as well as a sense of duty as an officer of the court and responsibilityas part of a system in our society that is engaged in upholding the rule of law." Lawyers know that it is against the ethical rules to steal a client's funds, and the rule against co-mingling a client's funds with the lawyer's funds is emphasized in most legal ethics classes. It seems to me that one who mishandles a client's funds lacks "a sense of duty as an officer of the court" and fails to understand his "responsibility as a part of a system in our society that is engaged in upholding the rule of law." It involves "one's own decision about [professional] behaviors," not a misunderstanding of the rules.
While I have said in previous posts that we should be teaching the ethical rules across the curriculum, law schools must also develop their students' professional identities, or the teaching of the ethical rules will be a waste.