Living `top-down' in a `bottom-up' World: Musings on the Relationship Between Jewish Ethics and Legal Ethics

• Publication year: 2021
• Citation: Vol. 78

78 Nebraska L. Rev. 18. Living `Top-Down' in a `Bottom-Up' World: Musings on the Relationship Between Jewish Ethics and Legal Ethics

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Nancy B. Rapoport*

Living "Top-Down" in a "Bottom-Up" World: Musings on the Relationship Between Jewish Ethics (fn1) and Legal Ethics

This essay comes from an invitation to present the 1998 Louis Nemzer Memorial Lecture at The Ohio State University. That invita-

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tion gave me the opportunity to write about the intersection of Jewish ethics and legal ethics. It's not surprising that I chose that topic, given my background.

I've been fascinated by legal ethics ever since I was a first-year associate at my former law firm. Even then, I was trying to understand how the generalist ethics rules-"be zealous in representing your client"; (fn2) "protect the client's confidential information";(fn3) "be loyal to the interests of your client"(fn4) -fit particular types of legal situations. Once I became an academic, I was able to spend much more time thinking about some difficult ethical questions. Virtually all of my research has, in some way, been tied to legal ethics, especially bankruptcy ethics.(fn5)

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In the Nemzer lecture, I ventured outside my comfort zone of bankruptcy ethics into the zone of Jewish ethics. That was a bit scary for someone who grew up as one of a handful of Jews in a small town in Texas. Our house was chock-full of Jewish knowledge-everything from the Encyclopedia Judaica to books and articles written by my own family-and still, with such a small Jewish population, my Jewish upbringing was vastly different from Jews growing up in areas like New York or Los Angeles. I was, and am, Jewish-identified and somewhat (erratically) observant, but I'm not someone who was immersed in orthodox culture growing up. In this essay, then, I have the opportunity to unite my two worlds: my Jewish world and my academic world.

Let's start with two different ways of looking at ethics. One way is what I call the "top down" view. The rules of behavior are given to the society by the leader (the governing authority) of that society. Jewish ethics are, by their nature, "top down" rules. We get them from God (although, in a few pages, I'll discuss some vastly different conceptions of Jewish ethics). Although the meaning of various Jewish ethical rules can be-and are-debated hotly, the legitimacy of these rules comes from a single authority,(fn6) rather than from a consensus of opinion.

Contrast that with the way that legal rules of ethics are developed in the United States. There's no one single source that issues ethics edicts in law in the same top-down manner of Jewish ethics.(fn7) Instead, lawyers debate what rules should be adopted to describe the common ground of ethical behavior. After they reach a consensus, they draft the rules.(fn8) I'd call this more of a "bottom-up" approach: the community as a whole agrees on the rules and then enforces them.(fn9)

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We can draw several conclusions from the way that the top-down and bottom-up approaches differ. One obvious conclusion is that the top-down approach spends more time emphasizing aspirational goals. It's not good enough merely to "not be" a "bad" Jew; we must constantly strive to be "better" Jews. The bottom-up approach, on the other hand, has aspirational aspects, which suggest how to be a "good" lawyer. Still, the bottom-up approach-because it is developed by compromise and consensus-focuses much of its efforts on prohibiting "bad" behavior. If a lawyer doesn't commit an ethical violation, she can't be punished-even if her behavior doesn't live up to the aspirational goals of the ethics rules.(fn10)

Another distinction is the "absolute rightness" of the rules. In a top-down world, the "rightness" of the rules is a "given." Much like a parent's phrase, "because I said so," the rules simply "are" and, as such, are "right" by definition. In a bottom-up world, on the other hand, the rules are created through debate and compromise, and the result can be "mostly right" but not necessarily "absolutely right."(fn11) The "rightness" isn't right by definition but is due to an overlap between what the community decides is right and our notions of moral "rightness."

That's my first distinction: the top-down approach vs. the bottom-up approach. But before we can really examine the differences and similarities of Jewish ethics and legal ethics, we need to make a few more distinctions. I base the next set of distinctions on what would make someone decide to follow any ethics rules. What gives ethics rules their power is the willingness of the "governed" group to be governed by those particular rules. That, in turn, means that people have to decide just which group they're in.

It's a fallacy to say that anyone is a member of just one group.(fn12) Typically, people are members of several groups simultaneously: for example, I'm a married, female, Ashkenazic, Reform Jewish law professor living in Lincoln, Nebraska. Depending on what context I'm in, any one of these (or any other of my myriad of group identities) may

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come to the fore. Each of my identities is important, although some are more important than others.(fn13)

Let's start by examining one area of identity: Jewishness.(fn14) Although we all know that there's an infinite range of ways in which people can identify as Jewish, I'm just going to talk about the Big Three and One Other: observant/Orthodox Jews, Conservative Jews, and Reform Jews, on the one hand, and socially or ethnically identified (but nonreligious) Jews, on the other.(fn15) One way of viewing Jewishness is by the degree to which the top-down rules are taken literally by the Big Three and One Other. Another, closely related, way of viewing Jewishness would be the degree to which all of the other "memberships" are governed by those same top-down rules.

Take observant/Orthodox Jews: everything in their life is governed by these top-down rules (work, prayer, food, relationships, etc.).(fn16) There's a beauty to that way of life-a beauty born of appreciating, and ritualizing, every aspect of life: from seeing something wonderful for the first time (which has its own bracha) to eating an ordinary meal (ditto). Because of the ways in which observant Jews must conduct their daily lives, they tend to gather in communities composed of other observant Jews, if that's at all possible.(fn17) Their goal is to follow God's commandments as fully as they possibly can, and all of their other memberships relate to their "top-down" world.

As we move farther away from the observant side of the observant/nonobservant continuum, we see less of a willingness to follow all of

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the rules literally.(fn18) Now, I'm not saying that Conservative Jews aren't observant or that their Jewishness doesn't govern their daily conduct. Far from it.(fn19) But they have elected to modernize the application of the commandments, which means that, at the very least, they're engaging in a different level of interpreting the rules.(fn20) And Reform Jews tend toward even more interpretation, and more selection, in terms of which rules to follow.(fn21)

What of nonreligious but still Jewishly identified Jews? Their group membership doesn't seem to come from a top-down basis but from other, still strong, ties. I'm finding it difficult to fit them into my typology, but we need to note their presence. In order to round out the continuum, I also have to consider a fifth group: Jews who don't identify with Judaism at all. It would be convenient if I could draw a continuum of Jewish identity, with observant/Orthodox Jews on one side and unaffiliated Jews on the other side. I'm not sure that it's that simple, but we'll use the continuum construct for now.

Now let's look at the bottom-up system of legal ethics. The two most common models of ethics rules, the Model Code of Professional Responsibility and the Model Rules of Professional Conduct, presume a level of generality about lawyer behavior that is extremely abstract. (fn22) Under the Model Code or the Model Rules, the rules are designed to cover all lawyers. Even though the ethics rules recognize that lawyers can play several different types of roles-advocate, counselor, mediator-and even though certain rules take those different roles into account,(fn23) the rules are still designed to be multipurpose in

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nature. Other codes of legal ethics are more subject-matter specific: there are rules for groups such as matrimonial lawyers and military lawyers, and I'm in the process of proposing (in another article) a set of rules for bankruptcy lawyers.(fn24)

One thing to note about the codes of legal ethics is that they are designed to do two things: to punish departures from the "floor" of acceptable, minimally ethical conduct, and to guide lawyers toward improvements upon that floor. But only one of these purposes carries with it the threat of punishment: departures from the floor of acceptable conduct. In other words, the bottom-up effect of legal ethics is that it punishes the worst behavior of the group. The bottom-up nature doesn't reward improvements upon decent behavior.(fn25)

In addition, because these rules are bottom-up, there's a lot more leeway in "opting in" and "opting out" of the rules if they don't seem to apply to a particular situation, although lawyers who make the wrong decision about "opting out" are subject to sanctions for violating those ethics rules. For example, there are lawyers who don't "do" litigation, and those lawyers probably don't spend a lot of time thinking about the litigation-oriented rules in the ethics codes. Litigators, likewise, are not likely to be as concerned with things that transactional lawyers care about, like scriveners' errors (mistakes in drafting a document). (fn26) If a bottom-up code is created by consensus, and not from a unitary...