Monday, February 13, 2012
A few weeks ago, I wrote a post on incorporating legal ethics into doctrinal courses. I concluded that "I agree with the Carnegie Report that we need to teach professionalism better in law school. Probably the best way of doing this is to incorporate skills training into doctrinal courses, especially now that casebooks and supplemental texts allow professors to easily do this."
David Thomson posted a reply on his blog Law School 2.0:
"Scott is right on track. It is possible to integrate professional ethics issues into any doctrinal course, and with the Skills & Values Series (as it grows to cover nearly every subject), it should be fairly easy to do.
I would only add that as we develop our thinking about professional ethics instruction, we should be explicit about what we mean. It seems to me that the terms "Professionalism" and "Professional Identity" have been getting confused. Yes, there is some overlap between them, but each contains components that are distinct from the other. The Carnegie report is critical of legal education in not teaching or - more accurately, I think - creating opportunities for students to develop their professional identities.
Here is my shot at the distinction - Professionalism relates to behaviors, such as timeliness, thoroughness, respect towards opposing counsel and judges, responding to clients in a timely fashion. I actually think we teach this pretty well in law school, across the curriculum. We expect certain behaviors (often we define them in our course policies documents, and certainly they are defined in the student handbook), and for the most part we get them. Professional identity relates to one’s own decisions about those behaviors (which sounds like overlap, but it’s not), as well as a sense of duty as an officer of the court and responsibility as part of a system in our society that is engaged in upholding the rule of law. For me, "teaching" Professional Identity means we ask the student to finish this sentence: "I am a lawyer, and that means, for me that I will resolve this ethical dilemma as follows…"
I agree with Professor Thomson that law schools need to teach both types of professionalism–the rules of professionalism (along with professional behavior) and professional identity. Law schools rarely teach the second one, except for clinics and some legal skills classes. Maybe this gap is why there are so many ethical complaints against lawyers and why the public views lawyers so poorly.
New law students have a picture of what being a lawyer is like from television and movies. Unfortunately, television and movie writers seem to be unaware of the rules of professional conduct. Of course, it is more dramatic to win a case through a "clever" trick than good, ethical lawyering.
Therefore, we need th teach our students professional identity–not socialization as an elite, which we currently teach and which dates back over 100 years to Langdell, but how to be a professional in the real world in relation to clients, other attorneys, judges, and the public.
I have mentioned this article before, but I will cite it again because it provides a good beginning for developing professional identity: A recent article by Denise Platfoot Lacey advocates that law schools go beyond classroom teaching of ethics to evaluate their students' professional conduct in law school.
Abstract: "There has been a repeated call to incorporate professionalism training in legal education in order to assist students in developing professionalism. While law schools have begun to answer this call, they often fail to teach and assess actual professionalism behaviors of their law students. Such failure results in lost opportunities to impart to law students the expectations of the legal profession, as well as to help them to develop the highest standards of conduct. This article will present information about a model of professionalism assessment in medical education and how it can be integrated into legal education to facilitate the teaching and evaluation of professionalism in law students."