Legal ethics: The law of lawyering

Illustration by Claudia McGehee.

Margaret Raymond knows full well that teaching a law school course on professional responsibility can be challenging. In fact, that’s one reason she likes to teach it.

“A course in ethics was required by most law schools when I was a law student during the post-Watergate years,” says Raymond, who earned a bachelor of science degree in chemistry from Carleton College in 1980 and a law degree from Columbia University in 1985. “But not many schools viewed the course with enthusiasm. Few full-time faculty members were assigned to teach professional responsibility, and I remember the ethics course I took as an exercise in frustration and humiliation.”

Learning despite landmines
Typically, any hypothetical presented in the course was fraught with Socratic landmines. Say, for instance, the class was considering how an attorney should respond to a client who wanted to commit perjury on the stand. If a student decided that the lawyer’s duty of confidentiality dictated that she not reveal her client’s perjury, the instructor countered with, “What? What about your duty to perform as an officer of the court and not corrupt the legal system?” On the other hand, if a student advocated revealing the deception to the court, the refrain was “What? Where’s your duty to uphold the confidentiality of your client?”

It was, Raymond recalls, “a peculiar universe where every answer was wrong and subjected you to humiliation.”

Despite—or perhaps because of—her own law school experience, Raymond became fascinated by the tough issues of professional responsibility in legal practice. After earning a law degree, she clerked for two renowned jurists—James L. Oakes of the U.S. Court of Appeals for the Second Circuit, and Thurgood Marshall of the U.S. Supreme Court. Raymond says that her clerkship experiences shaped her notions of legal practice.

“I learned the fundamental significance of individual representation,” she says, “especially from listening to Justice Marshall. In his early years, he represented a lot of people in a lot of small towns, and he played a vital role in the lives of those people.”

In 1987 Raymond became an associate at the New York City law firm of Morrison & Foerster. Although she enjoyed the work, she decided after one year to shift her focus. She wanted to be a trial lawyer, and large-scale civil litigation in a large firm meant dealing mostly with discovery and pretrial procedure. The senior partners in her firm never saw the inside of a courtroom.

“When you work in a big firm,” Raymond says, “you are just one part of a large team, each member of which divides the case into small pieces. Even more important, what’s at stake is money. What’s being argued or decided doesn’t implicate the basic issues of our lives. Working for a small criminal defense firm started sounding more interesting and more fun.”

Raymond joined a two-person firm in Portland, Ore., where she handled various misdemeanor defenses and a civil case representing a rape victim who had been assaulted by a prison inmate on unsupervised work release.

Finding satisfaction
Raymond says that although her income decreased considerably, the new position was a boon in other important ways.

“I got a lot more litigation experience,” she says, “and was doing work that affected people’s lives in a way that large-scale civil litigation doesn’t. After all, if a defendant goes to jail, he may well lose his job, his house, his girlfriend or wife, and his reputation.”

In addition, Raymond found herself put to the test about larger issues of justice and responsibility.

“A layperson’s notion about criminal responsibility often doesn’t correspond to what our legal system defines as responsibility,” she says. “A defendant may have pulled the trigger, but the circumstances surrounding that action affect whether he is legally culpable.”

Raymond adds that in her own practice, she found that the facts weren’t always clear.

“I often felt that even I had to wait for the jury to decide what had happened and who was responsible,” she says. “And besides, as a criminal defense attorney, I was convinced that my role was not to prove the innocence of my clients but to put the state to its proof.”

These experiences led Raymond to larger considerations of the role of the legal system and lawyers in American society.

“The issues surrounding the behavior of the police and courts is fascinating,” she says. “Criminal law and procedure is fundamental to what our society looks like and reflects what we value.”

When Raymond decided she wanted to teach law, she knew precisely what subjects she wanted to teach: criminal law and procedure, a seminar on the Supreme Court, and ethics. Her lively and creative approach to teaching professional responsibility is a far cry from the way she was taught. To begin with, although Raymond calls on students frequently, she works hard to make that experience a positive one. Her students are not trapped in a no-win situation that leaves them lost in a thicket of ethical conundrums.

Providing guidance
“I try to encourage students to get to certain levels of thought they didn’t think they could reach,” Raymond says. “If someone doesn’t answer a question quite the way I’d like, I try to break the issue into pieces so they have the experience of arriving at a successful end point, even if they started out in the wrong direction.”

Raymond adds that, in every comment, it’s important to search for some kernel of meaning, insight, and pragmatic truth.

“I call on students frequently throughout the semester,” she says, “so they become accustomed to speaking. This helps eliminate the anxiety that interferes with their ability to think logically and argue persuasively. Even lawyers who never litigate need to know how to step up and speak to an issue. I try to give my students this experience.”

Raymond also applies a variety of teaching tools in her classroom. She uses video vignettes of lawyer conduct, often from popular culture, to stimulate discussion. She requires her students to draft letters, investigate research resources, and participate in small-group exercises. They also negotiate and role-play. In one such exercise, the students pair off as “attorneys” and “clients” and wrestle with the issue of conflict of interest with reference to contingency fees.

“Inevitably,” Raymond says, “there are always two or three clients who end up wanting to fire their attorneys.”

More than morality
Raymond’s engaging teaching style nevertheless must overcome an instinctive resistance in some students to being taught ethics.

“Students arrive the first day with certain resentments,” she says. “First, they are annoyed that ethics is a required course. And even more, they think I am going to try to teach them to be moral when they believe they already are moral.”

In fact, Raymond says, the course in professional responsibility focuses on the “law of lawyering.” It’s not about morality, although inevitably the laws concerning the ethics of practicing law may be in conflict with a student’s own personal ethical views. It is this divergence between personal morality and legal ethics that students often find most challenging—and most exciting—about the course.

Considering the legal life
“I try to get students to consider carefully whether they are ready to be lawyers and live under these professional rules,” Raymond says. “And as I often tell them, ‘This is the only course in your law school career that isn’t about a client—it’s about you. This isn’t only about how to protect your client, but about how to protect yourself.’ ”

The full impact of that may not be felt until after students have left Raymond’s classroom and actually encountered the real-world dilemmas of practicing law. And when that happens, they sometimes want help wrestling with the ethical issues their former teacher challenged them to consider.

“At the end of the course in professional responsibility,” Raymond says, “I always tell my students that if they ever want to talk about the issues we’ve dealt with, they can call me. I can’t be their lawyer or practice law for them, but I can be a sounding board. I think that’s important.”

Article by Jean C. Florman