The study of professional responsibility and legal ethics in American law schools has been marginalized for far too long. If the legal profession aspires to have lawyers in practice take professionalism and ethics seriously, would-be lawyers must be made to engage seriously with those subjects while in law school. This article discusses the problems inherent in the current structure and proposes a curricular reform that situates professionalism and ethics at the forefront of the educational program.
THE MANDATORY COURSE IN PROFESSIONAL RESPONSIBILITY
A firm commitment to professional responsibility and legal ethics is essential to maintaining the integrity of the practice of law and the legal profession. One would expect, therefore, that the American Bar Association Model Rules of Professional Conduct (MRPC)1 and fundamental doctrines in the canon of professionalism and ethics — including conflicts of interest, the duty of confidentiality, and attorney-client privilege — would have a prominent place in the curriculum of every American law school. As it turns out, the typical law student has no meaningful exposure to these critical subjects until after completing their first year.
The initial experience comes in the form of a one-semester course mandated by the American Bar Association Standards and Rules of Procedure for the Approval of Law Schools.2 The sad truth is that students tend to loathe that course, often profoundly.
Having taught at least one section of the mandatory course in professional responsibility in each of the past four academic years to more than 300 students in all, I can attest to the intensity of student sentiment on the matter. Every semester, I am struck by how quickly the students disengage from that course. Even those students I know from other courses to be active and engaged learners are generally unable to muster anything close to that same level of attention and enthusiasm for professional responsibility.
A principal reason for the aversion to the course in professional responsibility is that students find the material to be tedious. My anonymous evaluations from one particular semester are illustrative. The subject matter of the course was described as “boring,” “very boring,” “really boring,” “highly boring,” and “the MOST BORING TOPIC in the history of time.” Other descriptions that same semester included “incredibly dull,” “extremely dull,” “very dry,” and “drier than dry toast.” I have observed nothing like these criticisms for any other course that I teach. Notably, civil procedure is among my regular courses.
In fairness to the students who leveled those criticisms, many topics in professional responsibility simply lack the conceptual rigor that one comes to expect from a law school course. The MRPC provisions on advertising and solicitation,3 charging of fees for legal services,4 and safekeeping of client property5 — to cite just a few examples — are sufficiently straightforward that students can obtain a solid grasp of them without extended elucidation from a law professor in a classroom setting.
This is not to suggest that these topics are unimportant. They most certainly are important — as many lawyers realize upon finding themselves on the receiving end of a sanction for committing a violation. But students justifiably question the necessity of being compelled to learn such subjects in the context of a traditional classroom format. And students resent having to be in a classroom when their limited time could be applied to the pursuit of other commitments.
As to other commitments, a separate issue with the course in professional responsibility is that students typically become eligible to enroll in it only upon reaching the second year of law school. Second-year law students — and third-year law students, for that matter — have a predictable tendency to take on more coursework and cocurricular activities than they can effectively manage. It is just a matter of time before they are inundated. Yet, it is precisely at this point that the course in professional responsibility appears on their schedules.
With time in short supply, overwhelmed students naturally put to the side that which strikes them as the least challenging task to concentrate their energies on getting required hours in at an externship or a clinic, writing a brief or preparing for oral argument for a forthcoming moot court competition, fulfilling duties as a member of the staff of a law journal (which frequently requires the authoring of a substantial scholarly work), etc. The course in professional responsibility becomes an easy target for relegation when the going gets tough.
The consequence of this arrangement is that while the mandatory course exposes law students to professionalism and ethics, the learning atmosphere is compromised by significant disengagement and distraction.
THE MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM
Most law students are exposed to an additional round of professional responsibility and legal ethics through the Multistate Professional Responsibility Exam (MPRE).6 The MPRE, which is administered three times each year, consists of 60 multiple choice questions designed to “measure candidates’ knowledge and understanding of established standards related to the professional conduct of lawyers.”7
One would think that the process of preparing for and taking the MPRE — at least for most law students — would be an invaluable means of acquiring a firm grasp of the Model Rules of Professional Conduct and the basic doctrines related to professional ethics. However, for the same reasons students are largely disengaged and distracted when enrolled in the mandatory course on professional responsibility, they are also largely disengaged and distracted when preparing for the MPRE.
Based upon student feedback I have received over the years, the usual MPRE preparation consists of working through an online review course over a period of a few weeks (or even crammed into a few days) while pressed with the usual demands of upper-level coursework and cocurricular activities. Regrettably, the apathy of some students toward the MPRE is so strong that they don’t adequately prepare at all, making it exceedingly likely that they will have to endure the time and expense of taking the exam more than once. The result is that even when achieving the immediate objective of obtaining a score that qualifies as passing in a chosen jurisdiction, few law students come away from the MPRE with a better understanding of the fundamentals of professionalism and ethics than when they started.
RECONSIDERING THE APPROACH TO PROFESSIONALISM AND ETHICS IN LAW SCHOOL
The contemporary framework American law schools employ for instruction in professional responsibility and legal ethics has led to a marginalization of those subjects. If ABA standards remain the same and law schools continue with an upper-level course in professional responsibility as the primary vehicle for instruction in professionalism and ethics, students will receive no significant exposure to these subjects until the second year of their legal education — at the earliest. By that point in the program, students are largely preoccupied with other academic and professional pursuits, making it easy to disengage from the study of the MRPC and related concepts when the time comes. Preparing for and taking the MPRE does little to make up for the learning the student did not experience in the mandatory course.
Because the topics of professionalism and ethics are presented to law students as afterthoughts, law students treat those subjects accordingly. But it need not be this way.
A NEW APPROACH TO INSTRUCTION IN PROFESSIONALISM AND ETHICS
Would-be lawyers will take the subjects of professional responsibility and legal ethics seriously as soon as ABA standards take them seriously. Such importance could be demonstrated by a change to ABA standards that places professionalism and ethics at the forefront of every law school educational program. This process would occur the moment students matriculate — when their zeal for learning the law is at its highest and they are unburdened by academic and provisional distractions bound to arise later in law school.
Specifically, students would be introduced to law school through an extended orientation program in which professionalism and ethics would be the first and exclusive academic focus. While a traditional classroom setting would be applied periodically, the less engaging provisions of the MRPC would be taught using interactive methods to make the experience more appealing.
For example, from already existing first-year sections, students could be subdivided into “firms” for the purpose of engaging in friendly competition against one another. The learning experience would promote so cial interaction to help students get to know one another at a time when they’re actually interested in forming new relationships while facilitating their understanding of essential concepts such as the definition of a firm,8 the responsibilities of partners and supervisory lawyers,9 and the imputation of conflicts of interest.10
An obvious downside to this proposal is that it would require students to make the necessary arrangements to enroll in law school at a substantially earlier point in the summer than mid-August. Meanwhile, some faculty and administrators would be required to shift their focus from other matters to instruct and manage those students at that same point in the summer.
But the downside of requiring an earlier start — and the necessary commitment of time, resources, and personnel — seem worthwhile when considering the rather compelling benefits of focusing on professionalism and ethics at the outset. First and foremost, from the moment they begin their legal education, students would receive a loud and clear message that they are already members of a profession. They would understand that the time to begin thinking and acting like a professional subject to rules of conduct is not when they earn their degree, nor is it when they receive their first summer externship. It is as an incoming law student.
Along those lines, students would have an immediate appreciation for the commitment of the legal profession to the honesty and truthfulness of lawyers in practice. Specifically, when studying the Model Rules of Professional Conduct, students would be exposed to various prohibitions against conduct involving “dishonesty, fraud, deceit or misrepresentation,”11 knowingly making false statements of fact,12 or failing to disclose essential information in certain contexts.13
Related to this initial focus on professionalism and ethics, each student would receive instruction on the character and fitness process they will ultimately have to weather in order to become a licensed member of a state bar. Students would be instilled with a strong sense of how gravely an act of academic dishonesty or other misconduct might affect their legal careers, perhaps even to the point of preventing it before it happens. Moreover, students would be aware of how a discrepancy between an application for admission to law school and an application for membership in a state bar can complicate their own character and fitness process when the time comes.14 This concern would prompt new students to review recently submitted law school applications and, if necessary, amend them to ensure the information is accurate and complete. This simple act would go a long way toward putting a student in a frame of mind that embraces honesty and candor.
This initial focus on professionalism and ethics would provide law students with an invaluable grounding in topics such as the duty of confidentiality and the attorney-client privilege even before undertaking contracts, torts, civil procedure, and other first-year subjects. Knowing that their students are familiar with the basics of professionalism and ethics, instructors could expound upon these topics as they arise during class discussion of cases and problems in the first year and beyond.
Finally, students acquiring a firm foundation in professionalism and ethics shortly after starting law school would be well-positioned to achieve a passing score on the MPRE even before the traditional first-year curriculum begins in earnest. Aside from giving students the confidence and satisfaction of attaining an important academic objective early in their legal educations, it would spare them from the burden of contending with the MPRE later in law school while navigating the demands of upper-level coursework and cocurricular activities in order to find the time to prepare.