Thursday, August 30, 2012

In the Name of Ethics: The Good, the Bad, and the Ugly

Last month, I was at the International Legal Ethics Conference in Banff (ILEC V).  During my third presentation/panel of the conference - the third of which was not actually concentrated on legal ethics -  it occurred to me that calling the conference the “International Legal ETHICS Conference,” and calling the attending scholars and legal professionals “legal ethicists” was, on the one hand, completely accurate and a good thing (“the good”), but on the other hand, was perhaps an undersell and maybe a bad thing (‘the bad”).

The Good
Calling this area of study “legal ethics,” is and has been a good thing.  Likely, it was the right set of words originally.  “Legal ethics”  immediately resonates with insiders and outsiders, lawyers and nonlawyers -- especially in today’s market of lawyers gone bad.   Moreover, it immediately communicates.  If you tell someone you study the legal profession, you get a quizzical look.  If you say you study “legal ethics,” you get a head-nod.

Further, calling what we do “legal ethics” can be credited with uniting a group of academics and legal professionals from around the world that consider themselves experts and thought leaders in legal ethics.  These professors and professionals commonly teach a course on professional responsibility and write about the ethics of different types of practice and professionalism.  

The ILEC V is proof of the power of a common agenda to cross cultural and geographical distances.  The ILEC V is proof of the power of a common agenda to affect change and unite change-agents.  In addition to teaching and writing about legal ethics, the group that gathered at the ILEC V in Banff is known for challenging the status quo and innovating the way we think about, approach, and teach legal ethics.  

However, it was clear as I participated in panel after panel, that this group of legal ethicists aren’t only ethicists.  The teaching and scholarly agenda of most of the academics and legal professionals attending the conference is much broader than the words “legal ethics” encapsulate.  In keeping with that, many of the panels concentrated on topics outside or in addition to legal ethics like regulation, empirical study, innovation in education, and so on.  

The ILEC V was proof that lots of good - more than good - is coming in the name of legal ethics.  

So how can that be bad?

The Bad
Calling what we do “legal ethics,” however, isn’t perhaps all good.

Although the words “legal ethics” immediately conjure up something understandable in the minds of others, they paint an incomplete picture.  Many (if not most) legal ethics scholars would be more aptly described as analyzing and writing about the legal profession which includes the study of legal ethics but also the study of minority, diversity, and gender issues, the role of general counsels, prosecutors, and, professional services, the changing landscape of regulation, law firm practice, and corporate structure, and all areas of legal education.  

Somehow, it seems that the analysis of the Model Rules of Professional Conduct have become a proxy for the field of legal ethics.  But this may not be the most principled way to think about the field of legal ethics.  An article analyzing the pros and cons of outsiders investing in law firms and the impact and roadblocks created by Model Rule 5. 4, although it touches on ethical issues, is not really an article about legal ethics.  An article analyzing legal innovation outside of the U.S. and critiquing the Model Rules of Professional conduct that impede such innovation within the U.S. is not really an article about legal ethics.  Not to mention that labeling these works as such, may water down the importance of scholarship that really is focused on legal ethics.

So why do we continue to call these other things“legal ethics”?

The Ugly
Perhaps we call these other things legal ethics because we think deep down that it legitimates our “other” scholarship in the eyes of our academic peers.  When our work is labeled “legal ethics” scholarship, it is easily accepted if not revered by other scholars and outsiders.  But when what we do is labeled as “the study of the legal profession” or “legal profession scholarship,” when what we present or write about has a real and practical component to it (even though it has a normative component) it can be critiqued for being too descriptive.  It can be criticized because its recommendations for how the world should be rely on how the world is, that is, the normative argument is contingent on how things really could be.  

Or perhaps we call it “legal ethics” because (at least for untenured academics) it buys us credibility for the other things we choose to spend our time doing like co-chairing and being the keynote speaker at the Corporate Counsel Summit (something that some faculty believe should not be counted as an academic activity in a tenure review)  OR creating a new part-virtual global collaboratory designed to innovate the way we practice and teach law (which some faculty believe is not worthy of law school credit).   

True, there is a lot of good in analyzing, teaching, and writing about “legal ethics” and we should not stop doing so.  

True, the world is coming around.  The world is beginning to see the value in research and scholarship that dissects what is happening in the global legal marketplace - in practice and in education.  

And true, it is easier, in the meantime, until that world view changes, to use the lore of “legal ethics” to buy the freedom to do our other work -- our qualitative interviews of lawyers, our empirical studies on legal education, our experiments in legal innovation.  In the meantime, it is a lot easier to call it “legal ethics” than to figure out exactly what to call it and risk calling it something that isn’t seen as academic enough or that impedes our ability to have a practical and important impact on our profession.  

But as the Givers latest song lyrics make clear, the “ugly” truth is that there is no such thing as a “meantime”  -- and this is especially true in today’s law market.  Tomorrow, one of our law schools might close.  Tomorrow, one of our law firms might be bought.  Tomorrow, one of our law students (or all of them) might not get hired.  Tomorrow, a nonlaywer might be practicing law without reproach.  

The ugly truth is that if, in the meantime, we continue to label all that we do as “legal ethics,” we may get stuck in the meantime and never get around to calling what we do what it is.  And in so doing, we may get stuck in the meantime and never turn what we do, turn us, into what it and we can become . . . .

Our collective agenda is something that includes the study of legal ethics but is more than that . . . it is the study of the legal profession, the law market, what it was, what it is, and what it should be.  And more than that it is a passionate dedication to understanding how the law market works and how law is taught in order to affect change -- not just in how we think about these various stratums but in what we as lawyers and educators “do” and how we do it.  

The time is now to call what we do what it is and call it out loud.  The time is now to challenge those that think that the study of “legal ethics” or constitutional law or legal theory is more important, more normative, or more academic than studying what the law market is, predicting what it might be, and arguing for what it should become.  

[Michele DeStefano]

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This is interesting. As an outsider (non-academic) I recall looking at the ILEC site and thinking it didn't look like a particularly practical/useful event for me. While I am generally interested in ethics, an event focused solely on an academic look at ethics seemed like it would be unlikely to yield useful information (as much as I might enjoy the conversations). When I saw the tweets coming out of the event, however, I was wishing I had been able to attend. All of this goes to say that if you are looking to for greater participation from non-academics (which you may or may not) this branding may actually be important; at least for those of us who have to justify the expense of attending such an event.

Posted by: James Peters | Aug 31, 2012 10:29:50 AM

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