Saturday, November 15, 2014

A student article on the failure of the ABA and law schools to adequately prepare lawyers to handle ethical delimmas

This is a law review note written by Sabrina Narian who graduated last spring from Western State College of Law.  It's called  A Failure to Instill Realistic Ethical Values in New Lawyers: The ABA and Law School's Duty to Better Prepare Lawyers for Real Life Practice and available at 41 W. St. U. L. Rev. 411 (2014).  From the introduction:

You have been with the district attorney's office for less than four years. During this time, you have successfully prosecuted two murder suspects. However, shortly thereafter, the convictions have been called into question. And after further investigation you discover new evidence proving the two murder suspects are innocent. Immediately, you tell the district attorney (DA). The DA's response is, “I do not care. Go into that court hearing on the reversal of the convictions and defend the case.” The DA has admitted that if you do not defend the case, your caseload will be reassessed.


You were the only attorney in the district assigned to this case, and the only one there throughout the trial, and the only attorney for the hearing about the reversal of the convictions. Therefore you are in the best position to know that all of the evidence weighs in favor of overturning the convictions. You have heard of the phrase “throwing a case” to the defense to assist in the reversal, but you have also heard of the repercussions of such conduct including impacts on your salary, bonuses, and most importantly your reputation in the district. What do you do? Did you miss this chapter in your Professional Responsibility course? Unlikely, because it was probably never there.


. . . .


The purpose of this Article is to increase awareness about the lack of ethics courses offered at American Bar Association (ABA) accredited law schools, and the need for the ABA and its members to offer courses that are not solely meant to assist in passing the Multistate Professional Responsibility Exam (MPRE). Aside from a Professional Responsibility course, law schools are rarely paying attention to the social and cultural contexts of the legal practice. In fact, surveyed students have reported that law school did not prepare them well to deal with the ethical dilemmas they face as a practicing attorney. Law students are simply not ready to ethically practice law without such exposure.



The problem became apparent after having taken an ethics course outside of the Professional Responsibility course at my law school. After much research on the issue, it appears that the opportunity to contemplate ethical dilemmas ex ante is not as prevalent as one would expect. Being exposed to such problems ex ante decreases the risk of breaking rules of ethics and possibly causing harm to yourself, the firm, or your client. It has been argued that irrational decisions stem from not having time to fully contemplate situations through or being ethically uneducated and facing powerful organizational pressures, forcing one to balance the individual's sense of right and wrong with pleasing their boss.


This Article begins with an examination of the changes that were made to the legal ethics codes since 1908 and why those changes were important to instilling a code of ethics in attorney work life. The Article will then explain that although the ABA may not have an express duty to require additional ethics courses, the ABA's vigorous establishment as the national representative of the legal profession may give an implied duty to the ABA and its laws schools to require more ethical courses. The ABA should ensure that its lawyers enter into the practice of law with awareness of ethical dilemmas they may face. Some examples in both civil firms and the district attorney's office will exemplify conflicting ethical situations law students would not be exposed to without such courses. The Article will then suggest a resolution to implement in-depth studies on ethics. The resolution proposes that the adoption of an “ethics clinic” is an effective way to fulfill the school's duty to increase exposure, such as the ethics clinics offered at California Western School of Law and Yale Law School. Specifically, an ethics clinic would expose students to ethics by either advising real practicing attorneys who are currently facing ethical dilemmas, or by exposing students to hypotheticals derived from real life situations and requiring students to resolve those dilemmas under pressure taking into account different cultural and personal factors


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