Friday, September 22, 2006
Let me break it down for you, Meatball
The next time I'm in Michigan and drive past the sign for 1-800-LAW-SUIT, I'll probably think what I usually do: "Dang, that's pretty good marketing." Is it "unethical?" It is in Texas, as an improper trade name, but not in Michigan. Which is part of the problem with traditional legal ethics-- it is based on a mismatched bunch of rules which are largely arbitrary and some of which are downright petty.
Matthew 22:34-40 talks about one of the times that a lawyer confronted Jesus. "One of them, a lawyer, asked him a question to test him. 'Teacher, which commandment in the law is the greatest?' He said to them 'You shall love your God with all your heart, and with all your soul, and with all your mind. This is the first and greatest commandment. And a second is like it: You shall love your neighbor as yourself. On these two commandments hang all the laws and prophets.'"
Jewish law (like the Texas Disciplinary Rules of Professional Conduct), contained hundreds of rules. Jesus told the lawyer that one way to try to comprehend all the rules would be to follow two principles which underlay those rules.
I'm not Jesus, but I have tried to learn the lesson from that story about looking to principles to understand ethical laws. In class, I'm suggesting a practicing lawyer follow three principles, as exemplified by three queries: Honesty ("Is what I am saying and implying true?"), engagement ("Am I doing all I should for my client?"), and humility ("Am I acting in the interests of my client or justice, or out of self-interest?"). I think that if you follow these principles, you will follow most of the ethical rules most of the time without constantly referring to them. Probably, I could have just used the two great commandments as the guiding principles, or other combinations-- this is still a work in progress, and I'm just a meatball trying to figure out, too.
Part of the problem with my principles, I'll admit, is that they are ambitious and do not match some common principles of our society. For example, self-enrichment or wealth maximization is a principle that also can direct action, and it is one that is celebrated and widely taught in our society. In many respects, I see how the principle of self-enrichment can be a positive social good (it is, after all, the basis of capitalism). However, if I taught self-enrichment as a legal principle, that would lead you afoul of many of Texas' ethical rules, and I don't want to do that.
In the end, my students will probably choose one of three courses to follow. I describe them below in order of what I hope for.
1) Some people will choose to be principled lawyers. They will do the hard work of determining the principles they will follow in their vocation. Perhaps some will alter the principles I suggest, but still be diligent in trying to follow them. The motive of the principled lawyer might be love for her community, society, or faith.
2) Some people will choose to be ethical, but not necessarily principled, lawyers. That is, they will worry about the hundreds of rules and try to follow them without reference to any larger principles. The motivation of the ethical lawyer is fear of getting caught.
3) Some people will choose to be neither ethical nor principled. They may justify this by saying "it's all gray area, anyways" or "no one really gets caught" or "I can't understand all those rules." I know some people will turn out to make this choice, but I hope I am never their client. The motivations of the unethical, unprincipled lawyers are legion.
Matthew 22:34-40 talks about one of the times that a lawyer confronted Jesus. "One of them, a lawyer, asked him a question to test him. 'Teacher, which commandment in the law is the greatest?' He said to them 'You shall love your God with all your heart, and with all your soul, and with all your mind. This is the first and greatest commandment. And a second is like it: You shall love your neighbor as yourself. On these two commandments hang all the laws and prophets.'"
Jewish law (like the Texas Disciplinary Rules of Professional Conduct), contained hundreds of rules. Jesus told the lawyer that one way to try to comprehend all the rules would be to follow two principles which underlay those rules.
I'm not Jesus, but I have tried to learn the lesson from that story about looking to principles to understand ethical laws. In class, I'm suggesting a practicing lawyer follow three principles, as exemplified by three queries: Honesty ("Is what I am saying and implying true?"), engagement ("Am I doing all I should for my client?"), and humility ("Am I acting in the interests of my client or justice, or out of self-interest?"). I think that if you follow these principles, you will follow most of the ethical rules most of the time without constantly referring to them. Probably, I could have just used the two great commandments as the guiding principles, or other combinations-- this is still a work in progress, and I'm just a meatball trying to figure out, too.
Part of the problem with my principles, I'll admit, is that they are ambitious and do not match some common principles of our society. For example, self-enrichment or wealth maximization is a principle that also can direct action, and it is one that is celebrated and widely taught in our society. In many respects, I see how the principle of self-enrichment can be a positive social good (it is, after all, the basis of capitalism). However, if I taught self-enrichment as a legal principle, that would lead you afoul of many of Texas' ethical rules, and I don't want to do that.
In the end, my students will probably choose one of three courses to follow. I describe them below in order of what I hope for.
1) Some people will choose to be principled lawyers. They will do the hard work of determining the principles they will follow in their vocation. Perhaps some will alter the principles I suggest, but still be diligent in trying to follow them. The motive of the principled lawyer might be love for her community, society, or faith.
2) Some people will choose to be ethical, but not necessarily principled, lawyers. That is, they will worry about the hundreds of rules and try to follow them without reference to any larger principles. The motivation of the ethical lawyer is fear of getting caught.
3) Some people will choose to be neither ethical nor principled. They may justify this by saying "it's all gray area, anyways" or "no one really gets caught" or "I can't understand all those rules." I know some people will turn out to make this choice, but I hope I am never their client. The motivations of the unethical, unprincipled lawyers are legion.
Comments:
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As a student in your PR class. I get it. I get what you're doing and I like it.
# posted by 
: 9:44 AM
: 9:44 AM
Do you ever sleep?
An anonymous Haiku:
Dreaming on mattress,
Sleep deprivation kills me,
caffeine streaming cup.
An anonymous Haiku:
Dreaming on mattress,
Sleep deprivation kills me,
caffeine streaming cup.
# posted by : 9:46 AM
: 9:46 AM
6:46: There is the theory that PC is secretly funded by the Starbucks corporation. Further, affiant sayeth not.
Wow. Why couldn't you have taught P.R. four years ago??
My biggest gripes about Baylor Law have always been (1) that they do seem to emphasize profit ("self-enrichment?")above all else, and (2) especially that they traditionally have done little to instill any sense of moral responisbility in their classes. Not until P.R. was there ever even a mention of "doing the right thing" unless some isolated prof went off-topic in class long enough to try to make that suggestion. (Not that this didn't happen, but it always seemed to be the whispered message that the big law school machine didn't want to waste time distributing.) And even the tone of my P.R. class, at best, fit into the second of your three categories: "Here are the rules, don't break them or you'll get in trouble." No kidding. "Zealous advocacy for your client," while an admirable goal, certainly must be tempered with the need to do the right thing. A law degree is an immensely powerful tool to distribute without also cultivating the proper underlying sense of justice.
Anyway, as always, I am highly impressed by your tenacity and moral fiber. Please keep up the good work.
My biggest gripes about Baylor Law have always been (1) that they do seem to emphasize profit ("self-enrichment?")above all else, and (2) especially that they traditionally have done little to instill any sense of moral responisbility in their classes. Not until P.R. was there ever even a mention of "doing the right thing" unless some isolated prof went off-topic in class long enough to try to make that suggestion. (Not that this didn't happen, but it always seemed to be the whispered message that the big law school machine didn't want to waste time distributing.) And even the tone of my P.R. class, at best, fit into the second of your three categories: "Here are the rules, don't break them or you'll get in trouble." No kidding. "Zealous advocacy for your client," while an admirable goal, certainly must be tempered with the need to do the right thing. A law degree is an immensely powerful tool to distribute without also cultivating the proper underlying sense of justice.
Anyway, as always, I am highly impressed by your tenacity and moral fiber. Please keep up the good work.
# posted by : 11:21 AM
: 11:21 AM
I would like to associate myself with the comments in praise of your tenacity and moral fiber.
I also recommend to your class, as an overriding and balancing principle, Tocqueville's theory of following "self interest, rightly understood." Or, loosely translated, "For what does it profit a man to gain the whole world, and forfeit his soul?"
I also recommend to your class, as an overriding and balancing principle, Tocqueville's theory of following "self interest, rightly understood." Or, loosely translated, "For what does it profit a man to gain the whole world, and forfeit his soul?"
# posted by : 3:37 PM
: 3:37 PM
Sadly, I think my class will fall into all three of the categories, but that said, I am really glad that you're teaching PR. I think this is an innovative and important way to approach the rules, and it has also made it easier for me to understand how to translate what's on the page into my actual practice. I endeavor to be a type 1 lawyer when I get out and I feel like I've got a great role model (several at Baylor, actually) and a good foundation to help me do that.
# posted by : 6:21 PM
: 6:21 PM
I didn't really read the other blog as attacking your class. To me, it seemed just that they were kind of hashing out their beliefs.
I enjoy class, and the discussions. Hopefully it will be sitting through your class, that will help them to follow their conscience, and do what is right.
I enjoy class, and the discussions. Hopefully it will be sitting through your class, that will help them to follow their conscience, and do what is right.
# posted by : 6:30 PM
: 6:30 PM
I didn't read the other blog to attack my class, either-- in fact, Meat Tray was actually echoing a lot of the same internal conversations I have when I read these cases.
What I was trying to do with the post was explain how I am (perhaps ineffectively) trying to work through those same thoughts in a meaningful and directive way.
It's not like because I'm the prof. I have a magic book that gives me the answers to hard ethical issues. Rather, I have to struggle with them, too, and then find a way to teach others to engage in that struggle.
I'll have failed if people don't struggle with those issues, and succeed if they do take them seriously, even if they sometimes come up with different answers. And I thing that is consistent with part of what Ash Ball was saying.
[I like the visual image that goes with both "Meat Tray" and "Ash Ball"]
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What I was trying to do with the post was explain how I am (perhaps ineffectively) trying to work through those same thoughts in a meaningful and directive way.
It's not like because I'm the prof. I have a magic book that gives me the answers to hard ethical issues. Rather, I have to struggle with them, too, and then find a way to teach others to engage in that struggle.
I'll have failed if people don't struggle with those issues, and succeed if they do take them seriously, even if they sometimes come up with different answers. And I thing that is consistent with part of what Ash Ball was saying.
[I like the visual image that goes with both "Meat Tray" and "Ash Ball"]
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