Making lawyers good people: possibility or pipedream?

AuthorDhanaraj, Subha
PositionLegal ethics

Law schools are like medieval monasteries. We seclude our novices from the world, give them sacred texts.... We give them ritual incantations ... to perform when their faith flags. Unlike other monasteries, however, we have no holy songs, for our faith holds that everything significant can be said. Our students take the vow to think like lawyers. As if in perpetual meditation, they must exclude from consciousness their prior lives and thoughts, their opinions, their outrage. We provide no spiritual room for their doubts. If they continue to have them, they will simply fail--in law school, and in the profession. There is no way to impart the calling to those who are not blessed. The exam will tell whether the incantations are working or whether they are tainted by doubt. (1)

INTRODUCTION

"OOOhhh! It's perfect!" Sara said to the real estate agent. Sara and Mike had been scrounging for years to save enough money for the down payment on a home, and had finally found their dream house. Their enthusiasm for the beautiful Victorian cottage did not prevent them from having an engineer inspect the house and their attorney handle the closing and the other legal matters. The house seemed sturdy and fine. When Sara and Mike met with the seller's attorney, she handed them a report indicating that the house was pest free. Within a month, Sara and Mike move in.

Within a few weeks, perhaps even days, Sara and Mike discover that everything is not quite perfect in their new home. Mice appear everywhere. They eat the couple's food and destroy personal belongings. Their filth pervades everything. To make matters worse, Sara has severe allergies and cannot stop sneezing whenever the mice are near. In fact, her quality of life worsens to the point that Sara and Mike decide to move out. Angry, sad, and vengeful, they decide to take action against the seller's attorney for providing them with an inaccurate report, only to find out that they have no recourse.

In the adversarial world of today's legal system, the seller's attorney in the aforementioned situation can offer a simple apology for the tragic situation and walk away. What makes the attorney able to walk away without fear or moral trepidation? (2) Surely that is not a natural human reaction. Where is it learned? Why is it taught? Where has the lawyer's morality gone? (3)

Today's lawyers seem nonchalant about their clients, their clients' problems, and the ethical situations in which they find themselves. (4) Attorneys appear to practice in a universe in which morality and compassion are not considerations. Lawyers seem to have distanced themselves entirely from moral responsibility. (5) Without moral responsibility, social accountability cannot exist. Without social accountability, achieving and maintaining a truly just society is nearly impossible.

Some scholars argue that the lawyer's lack of ethical accountability stems from an inherent failure in the methodology of legal education (6) and, perhaps, from a failure of the profession itself. (7) Admittedly, law school prepares students to understand the intricacies of legal issues by grounding students in the bedrock of substantive law, but, in so doing, forces lawyers to separate their souls from their profession. Society should expect lawyers to be more morally responsible than most non-lawyers because of the way in which lawyers can impact clients, other legal parties in a lawsuit, and even the general public. Law schools, however, fail to achieve this goal. (8) This Comment examines the failings of the current system of legal education to inculcate future lawyers with a heightened sense of moral responsibility. (9) Although some studies suggest immutable personality traits contribute to one's success as a lawyer, (10) "[t]he best empirical data indicates [sic] that an individual's moral development can and does continue during the years when most people attend law school." (11) Whether or not this notion is true, law schools have a duty to morally educate their students because of the critical situations lawyers regularly find themselves in. Lawyers work with confidential information in time-sensitive situations that can affect the judicial system, the general public, and the lives of legal parties. Thus, lawyers need to function with a great sense of moral imperative.

Lawyers handle delicate information and have the potential to make dramatic societal change, or, at the very least, affect the lives of their clients. Instead, the behavior of practicing attorneys has caused scorn and jocularity in mainstream society. The legal profession must maximize the ability of law students to grow morally, not only to produce more ethical lawyers, but also to improve the diminished prestige of the legal profession. (12)

Part I of this Comment outlines general conceptions of morality and moral development according to the widely accepted model promulgated by Professor Lawrence Kohlberg, and enunciates the importance of moral theory in the context of legal education. Part II analyzes competing views of moral development and challenges some general concerns about the value of moral education in law schools. Part III proposes the incorporation of moral teaching in the law school curriculum to remedy the disjunction between personal convictions and legal analysis stemming from the Langdellian method of legal training. (13) Part IV discusses the challenges to incorporating moral education into legal training. Finally, this Comment concludes that moral education is critical to producing compassionate, concerned legal professionals.

  1. CONCEPTIONS OF MORAL DEVELOPMENT

    When speaking of morality, scholars often describe man's moral spectrum as a dynamic equilibrium between opposing moral forces. (14) That is, two diametrically opposing ways of thinking about morality are in constant tension with each other, (15) namely "morality from above" and "morality from below." (16) Morality from above comes from within. (17) Because morality from above comes from the individual, he or she will be more apt to behave in accordance with such ethical thinking. (18) Professor Lon Fuller, as part of the William L. Storrs Lecture Series at Yale Law School in 1963, defined morality from above as the morality of aspiration. (19) Morality of aspiration "is the morality of the Good Life, of excellence, of the fullest realization of human powers." (20) This morality of aspiration is the achievement of one's potential. In terms of an analysis based purely on the morality of aspiration, a morally reprehensible man is one who fails "to realize his fullest capabilities" (21) and is culpable, not for failing to meet his societal obligations, but for failure to comport with "the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best." (22) Morality from above is, thus, ethical behavior based on personal motivations.

    Morality from below, on the other hand, comes from without and largely involves the standardization of individual behavior to achieve societal norms. (23) Such morality encourages obedience largely through the use of communal incentives, like punishment and mutual benefit. (24) Morality from below, or the morality of duty, as Professor Fuller describes it, focuses on maintaining order within society. (25) This conception of morality does not entail improvement, but mere maintenance of the existing social order. (26) After setting specific objectives, a community based on the morality of duty promulgates rules and obligations to which all members of society must comport. (27) Failure to do so results in civil or criminal penalties. (28) Most criminal justice systems are the result of morality from below. For example, society, as a whole determines a particular individual behavior, such as stealing, to be unacceptable. Then, persons who steal face prosecution. Both morality from above and morality from below discourage people from stealing, but in different ways.

    Extrapolating from these traditional conceptions of morality, Jean Piaget, an eminent child psychologist, revolutionized the field of moral theory by presenting a developmental theory of morality stemming from the cognitive processes that take place as individuals grow. (29) Piaget examined changes in thinking in relation to age and dealings with other people, ideas, and surroundings. (30) Piaget showed that, as children age and interact in different ways with their environment, they learn to use logic differently. (31) With the continuing desire to reconcile their personal perceptions with new information gained through experiences with the people, ideas, and objects in their environment, children often have to modify their own perceptions, without necessarily surrendering them as incompatible with objective reality. (32) For example, Piaget notes:

    The average seven-year-old looks at the sun and understands more about it than does the average four-year old. At seven, the child knows about the sun's relative size and distance from the earth, but he also logically relates these discrete data in order to judge that the sun is larger than the earth. Even if the average four-year-old were taught this information, he would not be able to apply it, for he has not yet developed the cognitive capacity to understand why the logical principle of perspective makes sense. To understand a logical principle properly, we must have developed it as part of our capacity to make sense of the world in which we live. (33) Thus, as individuals relate to their environment, their view of phenomena and ideas change, in accordance with their subjective perception of these experiences. (34) Higher logical thinking comes from interaction with the environment. (35) Cognitive experience leads to knowledge. (36)

    Piaget expounded upon his developmental theory to formulate a ready analogy in the context of moral development. (37) He theorized that individuals grow in...

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