Teaching Legal Ethics as Law Schools' Most Important Subject

UNIT II - SIGNIFICANCE AND CAPACITY BUILDING
Fordham Law School

FLASH: The Fordham Law Archive of Scholarship and History
Faculty Scholarship
1998
Teaching Ethics Seriously: Legal Ethics as the Most

Important Subject in Law School
Russell Pearce
Fordham University School of Law, rpearce@law.fordham.edu
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Recommended Citation
Russell Pearce, Teaching Ethics Seriously: Legal Ethics as the Most Important Subject in Law School, 29 Loy. U. 719 (1998)
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Teaching Ethics Seriously: Legal Ethics as the Most
Important Subject in Law School
Russell G. Pearce*
I. INTRODUCTION
In his essay Taking Rights Seriously,' Ronald Dworkin observes
that "the Government will not re-establish respect for law without
giving the law some claim to respect." 2 To paraphrase Dworkin, the
legal profession will not re-establish respect for lawyers without
giving lawyers some claim to respect.
Re-establishing respect for lawyers is a task of Herculean3
proportions. Recent polls indicate that society's respect for lawyers
has dropped precipitously during the past twenty years, far more than
society's respect for comparable occupations. 4 Indeed, for at least the
last ten years, this drop has continued despite lawyers' zealous efforts
to promote professionalism in response to the recommendations of the
1986 report of the American Bar Association ("ABA") Commission on
* Associate Professor of Law, Fordham University School of Law. This article was
originally written for presentation to the faculty of Loyola University Chicago School
of Law during my visit to present the 1997 Baker & McKenzie Lecture in Legal Ethics.
For their comments, the author would like to thank those faculty who attended
presentations of the essay at Hofstra University, Loyola University Chicago, Fordham
University Schools of Law, University of Haifa and University of Tel Aviv. The author
would also like to thank Sherman Cohn, Mary Daly, Deborah Denno, Tom Geraghty,
Steve Gillers, Bruce Green, Geoffrey C. Hazard, Jr., Milton Handler, Harry Haynsworth,
Carrie Menkel-Meadow, Carlin Meyer, Tom Morgan, Ronald Rotunda, Tom Shaffer,
Jerome Shestack, Ellen Yaroshevsky, Fred Zacharias, and Ben Zipursky for their helpful
suggestions.
1. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 184 (1977). See generally Maura
Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics,
80 IOWA L. REV. 901, 926-953 (1995) (applying Dworkin's analysis to legal ethics
jurisprudence).
2. DWORKIN, supra note 1, at 205.
3. See id. at 105-06 (discussing Hercules as "a lawyer [and judge] of superhuman skill,
learning, patience and acumen").
4. Chris Klein, Poll: Lawyers Not Liked, NAT'L L.J., Aug. 25, 1997, at A6 (citing,
among other statistics, that the percentage of the public viewing law as an occupation
"of very great prestige" dropped from 36% in 1977 to 17% in 1997); see also Gary A.
Hengstler, Vox Populi: The Public Perception of Lawyers: ABA Poll, A.B.A. J., Sept.
1993, at 60, 62 (finding that only 22% of the public views lawyers as "honest and
ethical").
719
720 Loyola University Chicago Law Journal [Vol. 29
5
Professionalism.
One of the many reasons 6 for the failure of the professionalism
crusade is the refusal of the legal profession's institutions to match
professionalism's lofty rhetoric 7 with forceful actions. One such
institution is legal academia. Despite lip service given to the
importance of legal ethics, 8 most law schools (with a few notable
exceptions) fail to give legal ethics the same respect and attention given
to most other courses, let alone a central role in the curriculum. 9
This Article addresses the importance of ethics instruction in legal
academia. It argues that the persistent disregard for teaching legal
ethics is grounded in three outdated ideological perspectives: (1)
professional and pedagogical practices ensure that lawyers are ethical;
(2) legal academia is a scientific project in which ethics is irrelevant;
and (3) adult moral development is relatively static.' ° This Article
urges that law schools teach legal ethics seriously by requiring a three-
credit first year, first semester course, at least one advanced upper-
5. ABA Comm. on Professionalism, In the Spirit of Public Service: A Blueprintfor

the Rekindling of Lawyer Professionalism 12-13 (1986). For a discussion of the ABA's
continuing efforts, see PROMOTING PROFESSIONALISM: ABA PROGRAMS, PLANS, AND
STRATEGIES (1998).
6. See generally Russell G. Pearce, The Professionalism Paradigm Shift: Why
Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar,
70 N.Y.U. L. REV. 1229 (1995) (explaining how professional ideology offers little
moral authority to lawyers and the public).
7. See infra Part II.A.
8. The term "legal ethics" as it is used refers to ethics rules, bar opinions, the vast
body of case law relevant to the conduct of lawyers and "the role of lawyers in our
society," as well as development of students' "capacity for reflective judgment." See
REPORT OF THE PROFESSIONALISM COMMITTEE OF THE ABA SECTION OF LEGAL EDUCATION
AND ADMISSIONS TO THE BAR, TEACHING AND LEARNING PROFESSIONALISM (1996)
[hereinafter TEACHING AND LEARNING PROFESSIONALISM]. Following common usage, the
terms "ethics," "values," and "morals" are used interchangeably. See THE RANDOM
HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 665 (2d ed. 1987) (defining ethics to
include "moral principles," as well as "values relating to human conduct"). However,
many lawyers and law students limit consideration of ethics to the professional codes
which they consider separate from morality. See, e.g., James R. Elkins, Thinking Like
A Lawyer: Second Thoughts, 47 MERCER L. REV. 511, 535-38 (1996) (describing and
criticizing the tendency of lawyers to cabin the concepts of professional ethics and
morality). This cabining of ethics can be attributed to the perspectives discussed infra
Part II.
9. See infra Part I.B. Related to the disdain for legal ethics is the disdain for
teaching lawyering skills. See infra Part II.B and text accompanying notes 20-21. For a
discussion of legal academics' attitude toward law practice, see Harry T. Edwards, The
Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L.
REV. 34 (1992) and Richard A. Posner, The Deprofessionalism of Legal Teaching and
Scholarship, 91 MICH. L. REV. 1921 (1993), which replies to the Edwards' article.
10. See infra Part III.
19981 Teaching Legal Ethics 721
class course, and pervasive teaching of ethics in all classes."
II. THE BETRAYAL OF PROFESSIONAL RHETORIC: PROFESSIONAL

COMMITMENT AND ACADEMIC DISDAIN
A. A Rhetoric of Ethical Commitment

A fundamental commitment to high ethical standards pervades
professional rhetoric."2 Legal ethics codes exhort lawyers "to maintain
the highest degree of ethical conduct"' 3 and declare that the "future of
the republic" and the "maintenance of justice" depend upon whether
"the conduct and the motives of the members of our profession are
such as to merit the approval of all just men.' 4 The ABA Section of
Legal Education describes "ethical conduct and integrity"' 5 as an
"[e]ssential characteristic of the professional lawyer.' 6 ABA President
Jerome Shestack proclaims "fidelity to ethics and integrity as a
meaningful commitment-in the spirit of enlarging and enhancing the
practice, and awareness
'' 7
of, ethics" as first among "the elements of
professionalism.
Beyond their inspirational value, these proclamations acknowledge
that high ethical standards are essential to professionalism and
lawyers' exclusive privilege to practice law.' 8 Lawyers' privilege rests
on a bargain between society and the legal profession. Society permits
lawyers to regulate themselves in exchange for the profession's
guaranty that lawyers will be ethical, competent, and place the public's
interest above their own self-interest.' 9 If lawyers do not meet these
1 1. See infra Part IV.

12. The conduct of lawyers is a different matter. See infra notes 58-60 and
accompanying text.
13. ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY pmbl. (1981).
14. A.B.A., 1908 FINAL REPORT OF THE COMMITTEE ON CODE OF PROFESSIONAL ETHICS,
reprinted in 33 A.B.A. REP., REPORT OF THE THIRTY-FIRST ANNUAL MEETING OF THE ABA,
at 575 (1908) (quoting the CANON OF ETHICS pmbl.).
15. TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 7.
16. Id. at6.
17. Jerome J.Shestack, Defining Our Calling, A.B.A. J.,Sept. 1997, at 8, 8.
18. While professionalism requires lawyers to meet high moral standards, it is not the
only source for such an expectation. Even commentators who reject professionalism
hold lawyers to strict standards. See, e.g., Pearce, supra note 6, at 1276 (arguing that
the moral conduct of lawyers will improve if lawyers replace professionalism with a
business paradigm); Thomas L. Shaffer, Lawyer Professionalism as a Moral Argument,
26 GONZ. L. REV. 393, 403-04 (discussing the connection in the legal profession
between serving commercial interests and serving the common good).
19. See Pearce, supra note 6, at 1239-40.
high ethical standards, the rationale for self-regulation and the laws
prohibiting unauthorized practice fails.
B. Academic Disregardfor Legal Ethics

Standing in marked contrast to the legal profession's commitment to
legal ethics is the law schools' disdain for teaching legal ethics.
Professor Deborah Rhode observes that "[t]hroughout the twentieth
century, a wide gap has persisted between the bar's official
pronouncements and educational practices concerning professional
responsibility."2' She notes that during:
the early twentieth century, such instruction remained quite
minimal, usually consisting of lecture series by judges or
prominent attorneys. For many of these series, no credit and no
grade were given; sometimes, as it turned out, neither were the
lectures. Those that did occur were generally short on content
and long on platitudes: 'general piffle' was the description
offered by one of the first serious scholars in the field.2 '
In the 1950's, leaders of the Association of American Law Schools
recommended that law schools offer both ethics courses and pervasive
teaching of ethics throughout the curriculum. 22 At the same time, the
reality of law school teaching contradicted this aspiration. A survey
revealed that most ethics courses "consisted of only one hour of
ungraded instruction each week" and that very few, if any, non-ethics
courses included pervasive ethics instruction. 23
The modern era of teaching legal ethics began in 1974.24 The
notorious conduct of lawyers implicated in the Watergate scandal
undermined "public confidence in the legal profession." 25 In order to
20. Deborah L. Rhode, Ethics by the Pervasive Method, 42 J. LEGAL EDUC. 31, 37
(1992).
21. Id. at 35.
22. See id. at 37; see also MICHAEL J. KELLY, LEGAL ETHICS AND LEGAL EDUCATION, 15-
16 (1980); cf JULIUS STONE, LEGAL EDUCATION AND PUBLIC RESPONSIBILITY 245-46
(1959) (describing the Association of American Law School's discussion of the
pervasive method of ethics teaching).
23. Rhode, supra note 20, at 36; see also KELLY, supra note 22, at 15; James E. Starrs,
Crossing a PedagogicalHellespont Via the Pervasive System, 17 J.LEGAL EDUC. 365,
379 (1965).
24. Use of this date to demarcate the modem era of teaching is not intended to suggest
that there were not outstanding ethics teachers and scholars prior to that time.
25. Ronald M. Pipkin, Law School Instruction in Professional Responsibility: A
CurricularParadox, 1979 AM. B. FOUND. RES. J. 247, 248; see also Mary C. Daly et al.,
Contextualizing ProfessionalResponsibility: A New Curriculumfor a New Century, LAw
& CONTEMP. PROBS., Summer-Autumn 1995, at 193-94. Rhode explained that "the
development of clinical programs, public interest law, consumer consciousness, and
activist student bodies encouraged challenges to traditional professional roles and
restore public confidence and bolster the integrity of lawyers, the ABA
House of Delegates "mandat[ed] the teaching of professional
responsibility in all ABA-accredited law schools. 2 6 A late 1970s
Doonesbury cartoon summarized law schools' response to this
requirement. Discussing whether a legal ethics course would make a
difference, a law student responds "nah-all that ethics stuff is just
more Watergate fallout! Trendy lip service to our better selves."27 '
Law schools resented the "ABA's assertion of curricular authority."
Although these schools may have complied with the letter of the ABA
requirement, 29 the course offerings were largely "second class."3
Law students got the message. A 1975-76 American Bar
Foundation ("ABF") study found that law students "perceived
[professional responsibility courses] as "requiring less time, as
substantially easier, as less well taught, and as a less valuable use of
class time."31 The courses had "a low status in the latent curriculum
hierarchy, 32 because they were more likely to be taught by the
discussion method rather than the socratic method 33 and were less
intellectually challenging due to the lack of doctrinal complexity.34
Ronald Pipkin, author of the ABF study, concluded "that the
prevailing mode of [professional responsibility] instruction in fact 35
socializes students into the belief that legal ethics are not important."
Since the undertaking of the Pipkin study, however, significant
change has occurred.36 As observed by Roger Cramton and Susan
regulatory structures." Rhode, supra note 20, at 39. However, the Watergate scandal
provided "the primary impetus for ethics instructions." Id.
26. Daly, et ai., supra note 25, at 194. The ABA House of Delegates added Standard
302(a)(iii) providing that each "law school ... shall provide and require for all student
candidates for a professional degree, instruction in the duties and responsibilities of the
legal profession." A.B.A., STANDARDS FOR THE APPROVAL OF LAW SCHOOLS § 302(a)(iii)
(1977); see also Pipkin, supra note 25, at 248. This appears to be the first time the ABA
required law schools to offer a "specific course." Id. at 249.
27. GARRY B. TRUDEAU, DOONESBURY (1975), reprinted in THOMAS D. MORGAN &
RONALD D. ROTUNDA, PROBLEMS AND MATERIALS ON PROFESSIONAL RESPONSIBILITY 1 (5th
ed. 1990); see also Roger C. Cramton & Susan P. Koniak, Rule, Story, and Commitment
in the Teaching of Legal Ethics, 38 WM. & MARY L. REV. 145, 145 (1996) (quoting
dialogue from Doonesbury comic strip).
28. Daly et al., supra note 25, at 195.
29. Pipkin, supra note 25, at 249.
30. Daly et al., supra note 25, at 195.
3 1. Pipkin, supra note 25, at 258.
32. Id. at 257.
33. Id. at 259.
34. Id. at 263-64.
35. Id. at 274 [italics in original].
36. One recent catalyst for change was the W.M. Keck Foundation's Law and Legal
Koniak, "the volume and complexity of case law dealing with the
responsibilities of lawyers has exploded; new and more challenging
textbooks have been published on the subject; and the subject we refer
to as 'the law and ethics of lawyering' has become a half-way
respectable field of academic scholarship."37 Deborah Rhode has
provided an excellent text for making pervasive ethics a reality.38
Further, schools like Fordham University have developed advanced
and contextual ethics courses, 39 and a number of commentators have
offered proposals for innovations in teaching ethics.' Teaching ethics
in a clinical setting has received more focus, 41 and some schools have
included ethics as a first year course.42
Unfortunately, these developments are not representative of the
current state of legal ethics teaching. Cramton and Koniak note that
today, "legal ethics remains an unloved orphan of legal education."43
Echoing the views of a number of commentators, they find that "[i]n
most law schools today legal ethics occupies a minor academic role as
a one- or two-credit required course in the upper-class years, often4
taught by adjuncts or by a rotating group of faculty conscripts."
Administration Grant Program that, from 1991 to 1995, provided almost $5 million in
grants to a number of law schools to improve the teaching of legal ethics. See Thomas
B. Metzloff & David B. Wilkins, Foreword, LAW & CONTEMP. PROBS., Summer-Autumn
1995, at 1, 1.
37. Cramton & Koniak, supra note 27, at 146.
38. See DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE
METHOD (1994); see also Carrie Menkel-Meadow & Richard H. Sander, The 'Infusion'
Method at UCLA: Teaching Ethics Pervasively, LAW & CONTEMP. PROBS., Summer-
Autumn 1995, at 129, 129.
39. See Daly et al, supra note 25, at 199-211; see also Bruce A. Green, Less is More:
Teaching Legal Ethics in Context, 39 WM. & MARY L. REV. 357, 372-77 (1998).
40. See, e.g., James E. Moliterno, Legal Education, Experiential Education, and
Professional Responsibility, 38 WM. & MARY L. REV. 71 (1996); Christine Mary
Venter, Encouraging Personal Responsibility-An Alternative Approach to Teaching
Legal Ethics, LAw & CONTEMP. PROBS., Summer-Autumn 1995, at 287.
41. See, e.g., David Luban & Michael Millemann, Good Judgment: Ethics Teaching
in Dark Times, 9 GEO. J.LEGAL ETHICS 31, 64 (1995); Michael E. Wolfson, Professional
Responsibility as a Lawyering Skill, LAw & CONTEMP. PROBS., Summer-Autumn 1995,
at 297, 297.
42. See TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 40-41.
43. Cramton & Koniak, supra note 27, at 146. Not surprisingly, Susan P. Koniak and
Geoffrey C. Hazard similarly use a family analogy to describe the status of legal ethics.
See Susan P. Koniak & Geoffrey C. Hazard, Jr., Paying Attention to the Signs, LAw &
CONTEMP. PROBS., Summer-Autumn 1995, at 117, 117 ("[L]egal ethics remains the step-
child of legal education.").
44. Cramton & Koniak, supra note 27, at 147; see also TEACHING AND LEARNING
PROFESSIONALISM, supra note 8, at 40-41 (reporting a 1994 survey finding that 44% of
schools offer a required two credit course, with 6% requiring no course at all, 23%
requiring a three credit course, and the remainder having a variety of approaches,
1998] Teaching Legal Ethics
They further observe that most schools which claim to teach ethics
pervasively in fact offer "little more than tokenism designed to satisfy
the [ABA] accreditation requirement. ' ' 5 While legal ethics scholarship
has advanced "half-way" to respectability, Koniak and Hazard note
that "'[s]erious scholarship' in legal ethics is still considered somewhat
of an oxymoron.'' 6 In addition, students continue to share the
faculty's low opinion of legal ethics. One observer notes that students
view legal ethics as "the dog of the law school [curriculum]-hard to
teach, disappointing to take, and often presented to vacant seats or
vacant minds."47'
III. WHY ACADEMICS WRONGFULLY DISDAIN LEGAL ETHICS

What explains the disjunction between the promise of professional
aspirations and the failure of the legal academy to honor these
aspirations? For years, many law professors have maintained that
legal ethics need not and cannot be taught. 8 This view is the product
including a one credit required course as well as more challenging options).

Professor Deborah Rhode recently conducted an informal survey of ethics teaching at
leading law schools. See Rhode, supra note 20, at 39-40, n.43 (noting that "slightly
over half" of the 92 schools reporting a mandatory ethics course to the AALS
Professional Responsibility Section offered a two credit course). In one school, she
discovered a "lecturer, known unaffectionately as 'old ether lips,' [who] gained students'
attention through multiple choice quizzes, in which much depended on getting the digits
of the ABA Code sections in the right sequence." Id. at 40. At a different school, "a
retired municipal court judge walked his class through the bar's disciplinary rules in
taxonomies of three. With the aid of a slide projector, students one day learned three
different kinds of conflicting interest; on the next, three reasons for zealous advocacy."
Id. Throughout these schools, most faculty asserted that "professional responsibility
coverage should not be their responsibility." Id. at 52.
A powerful testimonial to the second class status of legal ethics is the example of
Boalt Hall Law School, where proponents of legal ethics teaching felt they had to trade
placement of ethics in the first year curriculum for permission to increase the credit
hours of the course from two to three. See Stephen McG. Bundy, Ethics Education in the
First Year: An Experiment, 58 LAW & CONTEMP. PROBS., Summer-Autumn 1995, at 19,
20-22.
45. Cramton & Koniak, supra note 27, at 148.
46. Koniak & Hazard, supra note 43, at 117.
47. Rhode, supra note 20, at 40 (quoting Dale C. Moss, Out of Balance: Why Can't
Law Schools Teach Ethics?, STUDENT LAW., Oct. 1991, at 18-19); see also Cramton &
Koniak, supra note 27, at 145 (noting that "[Ilaw students, law teachers and
practitioners often assume that legal ethics is mushy pap that the organized profession
requires law students to study for public relations purposes").
48. See generally Elliot E. Cheatham, What the Law Schools Can Do to Raise the
Standards of the Legal Profession, 7 AM. L. SCH. REV. 716, 716 (1933) (noting that
legal academics consider legal ethics "beneath our notice" or believe teaching legal
ethics "transcends our powers"); Cramton & Koniak, supra note 27, at 146-47 ("Many
law school faculties remain convinced that [legal ethics] is unteachable or believe that it
is not worth teaching.").
of three powerfully entrenched perspectives: (1) a faith in the ethical

guarantees of professionalism and the methods of legal education; (2)
the belief in the scientific basis of legal education; and (3) the
assumption that adults lack the capacity for ethical development.
While these three perspectives have an imposing pedigree, they have
little persuasive force.
A. The Belief that the Profession and Education Will Ensure that
Lawyers Act Ethically
Despite the diminishing faith of the general public, the faith of legal
academics endures based on the belief that venerated elements of
professional ideology make the teaching of legal ethics unnecessary.
These elements include the professionalism's assertion of lawyer's
essential goodness, the legal education's promise of character
building, and the legal community's self-policing function.49 If any of
these aspects functioned satisfactorily, law schools would not need to
teach legal ethicsi ° Unfortunately, they do not.
Professionalism maintains that lawyers will behave ethically. It
presumes that most lawyers act ethically. For these lawyers,
articulation of ethical standards in codes of conduct will suffice to
ensure ethical conduct. 5 ' There are two further mechanisms that
purport to control those few practitioners who act unethically. The
first of these mechanisms is the "invisible hand" of reputation. 2
49. See infra notes 51-57 and accompanying text.

50. Similar arguments could of course also be made with regard to teaching legal
skills. See infra Part I1I.B.
5 1. See Pearce, supra note 6, at 1240; see also Russell G. Pearce, Rediscovering the
Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 241, 259-262
(1992) [hereinafter Pearce, Republican Origins].
52. The "invisible hand of reputation" derived from the republican ideology, which
preceded professionalism. See GEORGE SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS,
reprinted in 32 A.B.A. REP. 1, 75 (5th ed. 1907). Writing in 1854, Judge George
Sharswood, the father of our legal ethics codes, observed that "[s]ooner or later, the real
public-the business men of the community, who have important lawsuits, and are
valuable clients-endorse the estimate of a man entertained by his associates of the Bar,
unless indeed there be some glaring defect of popular qualities." Id. at 75; see also
Pearce, Republican Origins, supra note 51, at 260.
While acknowledging the need to create more formal mechanisms for regulating
lawyers, professionalism retained the "invisible hand" of reputation. For example,
Canon 27 of the ABA Canons of Ethics stated that "[t]he most worthy and effective
advertisement possible, even for a young lawyer, and especially with his brother
lawyers, is the establishment of a well-merited reputation for professional capacity and
fidelity to trust." A.B.A., 1908 FINAL REPORT OF THE COMMITTEE ON CODE OF
PROFESSIONAL ETHICS, reprinted in 33 A.B.A. REP., REPORT OF THE THIRTY-FIRST ANNUAL
MEETING OF THE ABA, at 575, 582 (1908) (quoting the ABA CANONS OF ETHICS Canon
27); see also Pearce, supra note 6, at 1242, 1238; Pearce, Republican Origins, supra
Lawyers who behave ethically earn the respect of their peers; this
respect determines whether they succeed in law practice. Conversely,
lawyers who behave unethically will not prosper. The second of these
mechanisms are the existing formal procedures for preventing
unethical people from gaining entrance to the bar and for disciplining
the few rotten apples who do become lawyers.53 With such
safeguards in place and with lawyers' success subject to the forces of
reputation, the profession guarantees its own virtue, rendering ethics
teaching in law school unnecessary.
The character building function of legal education serves as another
reason for refusing to make special efforts to teach ethics. Oliver
Wendell Holmes, for example, described how legal education imparts
moral lessons, both a passion for "profounder thought" and an
antipathy against "mean ideals and easy self-satisfaction." ' More
recently, Anthony Kronman praised the case method's "function[] as
an instrument for the development of moral imagination." 55 It causes
the student "to care with new intensity about the good of the legal
system and the community it represents." 56 This faith in legal
instruction perhaps explains why many leaders of legal education
maintain that "coverage of ethical concerns will occur naturally and
pervasively throughout the curricula," even when their schools offer
little or no specific instruction in legal ethics. 7
note 51, at 271-72; cf Eleanor Holmes Norton, Bargaining and the Ethic of Process, 64
N.Y.U. L. REV. 493 (1989) (suggesting the existence of a base level invisible hand of
reputation in the bargaining process).
53. See Pearce, supra note 6, at 1245; Pearce, Republican Origins, supra note 51, at
259-60.
54. OLIVER WENDELL HOLMES, The Use of Law Schools, in 3 THE COLLECTED WORKS OF
JUSTICE HOLMES: COMPLETE PUBLIC WRITINGS AND SELECTED JUDICIAL OPINIONS OF OLIVER
WENDELL HOLMES 474, 475-76 (Sheldon M. Novick ed., 1995).
55. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL
PROFESSION 113 (1993).
56. Id. at 119; see also Cramton & Koniak, supra note 27, at 178 ("The case method
also cultivates perceptual habits and may be used to cultivate a public-spirited approach
to law and legal institutions-what Brandeis referred to as 'the opportunity in the law' to
lead an admirable life.").
57. See Rhode, supra note 20, at 31. Cramton and Koniak express skepticism for a
few high prestige law schools which make such a claim. See Cramton & Koniak, supra
note 27, at 147. Similarly, studies in the 1950s reported that despite claims of
pervasive ethics teaching, only 36 of the thousands of non-ethics courses taught at the
85 law schools across the country discussed ethics. See Rhode, supra note 20, at 36.
Recently, Deborah Rhode undertook a related survey to determine whether casebooks
outside the area of ethics included content relating to ethical issues. She found that in
"138 books in fourteen subject areas the median amount of coverage in each volume was
1.4% of the total pages." Id. at 41.
Unfortunately, evidence today strongly suggests that neither the

promises of professionalism, nor the character building function of
legal education, satisfactorily ensure lawyers' ethical conduct. In fact,
the overwhelming consensus is that lawyers' ethics are declining, both
in compliance with ethical codes and in commitment to the public
good. 58 At the same time, the profession has been unable to police
itself adequately because its disciplinary system is underfinanced and
ineffective.5 9 Whatever merit and faith in professionalism and legal
education once existed, such merit and faith no longer offers credible
support for academia's position that teaching legal ethics is not
essential. Indeed, the mounting evidence of unethical lawyer conduct
continues to prompt demands for improved ethics teaching by law
schools."6
B. The Mistaken Notion that Ethics and the Science of Law Do Not
Mix
The belief that legal training builds character coexists with the
somewhat contradictory notion that legal education is a science to
which ethics is simply irrelevant. Related to this notion are the views
that ethics teaching consists solely of inappropriate proselytizing and
that its doctrine is too simple to merit serious consideration. 6'
The model of legal education in today's classrooms, the case
method, grew out of Harvard Dean Christopher Columbus Langdell's
view of law as a science.62 Langdell described appellate cases as the
58. See Pearce, supra note 6, at 1257 (noting the claims that "lawyers, their ethics,
and their professionalism are 'lost,' 'betrayed,' in 'decline,' in 'crisis,' facing 'demise,'
near 'death,' and in need of 'redemption,"' as a result of commercialism) (citations and
footnotes omitted).
59. See, e.g., GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING
893-97 (2d ed. 1994) (explaining why the professional disciplinary system needs
significant improving).
60. See, e.g., TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 13-25;
Thomas B. Metzloff & David B. Wilkins, Forward to Teaching Legal Ethics, LAW &
CONTEMP. PROBS., Summer-Autumn 1995, at 1 (noting the importance of legal ethics
education in law schools at a time when lawyers are plagued with "self-doubts about the
nature of [their] profession").
61. See Rhode, supra note 20, at 48-49; Cramton & Koniak, supra note 27, at 148.
Critics are concerned that "[mioral instruction will amount to moral indoctrination."
Rhode, supra note 20, at 49.
62. See ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s
TO THE 1980s 52 (1983). These developments in law reflected trends in higher education
in the late nineteenth and early twentieth centuries, which moved from a classic liberal
education to a more practical curriculum informed by the "scientific spirit." See id. at
51-52. This led higher education institutions generally to move moral education from
its central place in the curriculum to the periphery. See Rhode, supra note 20, at 33-34.
1998] Teaching Legal Ethics 729
raw materials from which to distill the principles of law.' He believed

that law libraries are to law professors and students as "laboratories
...are to the chemists and physicists, the museum of natural history
to the zoologists, [and] the botanical garden to the botanists."
Felix Cohen suggests that this scientific approach made legal
academics hostile to teaching ethics. 65 A science emphasizes "facts,"
not "moral values," and those who seek to promote the science of law
believe "that law can attain the prestige of science only by showing a
thorough contempt for judgments of value."' After all, notes Cohen,
"[t]here is no room for ethics in the oldest and most advanced science,
physics. Why should those who seek to build legal science concern
themselves with ethics?"6 7
Although few law faculty today expressly identify themselves as
legal scientists, Langdell's idealization of science continues to
profoundly influence legal academia.68 While those faculty who
identify themselves with a scientific perspective are more likely to
draw upon a social science, such as economics, than a hard science,
such as physics, 69 these faculty still distinguish between facts and
values.70 Legal positivists, who focus on what law is, similarly
63. See STEVENS, supra note 62, at 52. Langdell believed that,
law, considered as a science, consists of certain principles or doctrines. To
have such a mastery of these as to apply them with constant facility and
certainty ... is what constitutes a true lawyer . . . and the shortest and best, if
not the only way of mastering the doctrine effectually is by studying the cases
in which it is embodied ....
Id. (quoting Langdell, A Selection of Cases on the Law of Contracts, vii) (ellipses in
original).
64. Id. at 53.
65. See FELIX S. COHEN, Modern Ethics and the Law, in THE LEGAL CONSCIENCE:
SELECTED PAPERS OF FELIX S. COHEN 17, 19 (Lucy Kramer Cohen ed., 1970). In fact, in
the early 1900s, prior emphasis on teaching morals and ethics in higher education
"gradually gave way to emphasis on specialized training and ostensibly value-free
inquiry." Rhode, supra note 20, at 34.
66. COHEN, supra note 65, at 19.
67. Id.
68. See KRONMAN, supra note 55, at 110 ( "The single most prominent feature of
twentieth-century American legal education is its heavy reliance on the so-called case
method of instruction.").
69. See, e.g., GRANT GILMORE, THE AGES OF AMERICAN LAw 87-88 (1977) ("Where
Langdell had talked of chemistry, physics, zoology, and botany as disciplines allied to
the law, the Realists talked of economics and sociology not merely as allied disciplines
but as disciplines which were in some sense part and parcel of the law."). Kronman
refers to the law-and-economics movement in law schools as "the most powerful current
in American law teaching today." KRONMAN, supra note 55, at 226.
70. See KRONMAN, supra note 55, at 226.
separate law from morality. 7' Even many faculty who accept that the
study of law implicates evaluative decisions do not teach about values.
They commonly apply an "instrumentalist" approach that assumes that
certain policy goals are worthy of pursuit, and then focuses students
entirely on whether the law "provides an appropriate means for the
realization of [those] policy goals."72
In short, whether through old-fashioned Langdellian science,
through cutting edge Law and Economics, or through policy-based
instrumentalism, law professors continue to separate ethical questions
from legal questions. Consequently, teachers' and students' values
appear to become irrelevant. Some faculty view legal ethics as
"somehow uninteresting or unworthy of fine minds. 7 3 Others assert
"that moral instruction will amount to moral indoctrination." 74 As a
result, legal ethics education improperly "becomes an occasion for
teachers to impose their values and to penalize students with different
perspectives. ' ' 75 As David Wilkins recounts, "students who raise
general ethical objections in traditional law school courses are often
told that these
76
concerns are irrelevant to the 'legal' issues being
discussed.,
7 1. See, e.g., H. L.A. Hart, Positivism and the Separation of Law and Morals, 71
HARV. L. REV. 593, 593-95 (1958); Norton, supra note 52, at 459 (suggesting that law
teachers and students must "dispel a confusion between morality and law" in order to
properly master the law).
72. Benjamin C. Zipursky, Legal Coherentism, 50 SMU L. REV. 1679, 1692 (1997)
(describing instrumentalism).
73. KELLY, supra note 22, at 25. A similar dynamic exists with regard to training in
legal skills. See, e.g., Edwards, supra note 9, at 62-66 (arguing that law schools employ
too many "impractical" professors who pay far too little attention to training lawyers
to practice law). The move from apprenticeship to law schools as the predominant
method for training lawyers rested on the notion that the practical training of
apprenticeship was uneven and inadequate preparation for lawyers. See, e.g., STEVENS,
supra note 62, at 23-24. The scientific approach to lawyering provided the rationale
both for minimizing the role of apprenticeship and for "'combattling']" the inclination
of law students "to be practical." Id. at 93.
74. Rhode, supra note 20, at 48. Legal education should be a "rational hard-headed,
and no-nonsense analysis of . . . controversial problems," not a "camp meeting or
spiritual retreat." Id. at 49 (quoting James F. Bresnahan, "Ethics" and the Study and
Practice of Law: The Problems of Being a Professionalin a Fuller Sense, 28 J.LEGAL
EDUC. 189, 194 (1976)).
75. Rhode, supra note 20, at 48-49.
76. David B. Wilkins, Redefining the "Professional" in Professional Ethics: An
Interdisciplinary Approach to Teaching Professionalism,58 L. & CONTEMP. PROBS.,
Summer-Autumn 1995, at 241, 246; cf. William Stringfellow, A Lawyer's Work, in
WILLIAM STRINGFELLOW, A KEEPER OF THE WORD 30, 32 (Bill Wylie Kellerman ed., 1994)
(describing Stringfellow's experience at Harvard Law School in the 1950s where
mention of the word justice "evoked ridicule, as if justice were a subject below the
sophistication of lawyers").
1998] Teaching Legal Ethics
Although these critiques persist, the ideological perspectives from

which they derive their force have become an anachronism. The
complexity of the law and ethics of lawyering has become
undeniable. 77 Moral reasoning has regained respect as a serious
academic subject. 78 The idea that law is a science has lost some of its
hegemony, 79 as has the distinction between facts and values. 80 Within
the academic community more broadly, the notion that science is a
timeless and privileged means of discovery has become regarded as
philosophically suspect.8
Within the scientific community, the notion that science and ethics
do not mix has also lost its dominant influence. A recent National
Academy of Science publication on "responsible conduct in research"
discusses the ethics of "experimental techniques," the analysis of data,
and "conflicts of interest,"'82 as well as "the impact [of research] on
society. ' The publication notes that "[c]onstruction of the atomic
bomb and the development of recombinant DNA-events that grew
out of basic research on the nucleus of the atom and investigations of
certain bacterial enzymes, respectively-are two examples of how
seemingly arcane areas of science can have tremendous societal
consequences."'" Accordingly, today little support exists for the
77. See Cramton & Koniak, supra note 27, at 159.

78. See, e.g., Elliott M. Abramson, Puncturing the Myth of the Moral Intractability
of Law Students: The Suggestiveness of the Work of Psychologist Lawrence Kohlberg
for Ethical Training in Legal Education, 7 NOTRE DAME J.L. ETHICS & PUB. POL'Y 223
(1993) (suggesting that there is "an objective and universal dimension to moral
structures and moral reasoning" that "teaching can promote and accelerate").
79. See, e.g., Andrew M. Jacobs, God Save this Postmodern Court: The Death of
Necessity and the Transformation of the Supreme Court's Overruling Rhetoric, 63 U.
CIN. L. REV. 1119, 1119 (1995) (observing that "Langdell's ideal of law as a science of
reason has broken down generally within the law"); David Kairys, Introduction to THE
POLITICS OF LAW: A PROGRESSIVE CRITIQUE 1, 5 (David Kairys ed., revised ed. 1990)
(criticizing "the notion of law as neutral, objective, and quasi-scientific").
80. See, e.g., HILARY PUTNAM, REASON, TRUTH AND HISTORY 127-149 (1981) (arguing
that the fact/value distinction is untenable within contemporary metaphysics,
epistemology, and philosophy of language).
81. See, e.g., THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 1 (2d ed.
1970) (suggesting that scientific knowledge is socially constructed).
82. See COMMITTEE ON SCIENCE, ENGINEERING, AND PUBLIC POLICY, ON BEING A
SCIENTIST: RESPONSIBLE CONDUCT IN RESEARCH (1995) (joint publication of National
Academy of Sciences, National Academy of Engineering, and Institute of Medicine).
83. Id. at 20.
84. Id.; see also Freeman Dyson, Can Science Be Ethical?, N.Y. REV. OF BOOKS, April
10, 1997, at 46 (discussing the ethics of science and research in the 20th century); David
J.Mattson, Ethics and Science in Natural Resource Agencies, 46 BIOSCIENCE 767 (1996)
(describing the ethical dilemmas faced by natural resource agency scientists, and the
features of agencies that can exacerbate the already difficult practice of mission-oriented
science).
proposition that "contempt" for ethics is necessary in order for "law

[to] attain the prestige of science. ' 8
C. The Belief that Legal Ethics Cannot Make Law Students More
Ethical
Many law faculty believe that law schools cannot improve the moral
conduct of students through the teaching of legal ethics. 86 They assert
that students' values have been fully formed prior to law school and
are not likely to change. 87 This view, that the ethical capacity of adults
is relatively static, appears to be a survival of the feudal concept of
status wherein one's character and place in society was dictated by
birth and family status.' If birth and family circumstances dictate
character, education in ethics can make little or no difference.
This view reflects two major manifestations. The first is the
historical proposition that legal education and admission to practice
should be limited to the "right kind of people." As one critic of
required legal ethics education stated in 1930, the "'right kind' of law
student already knows what constitutes moral and ethical conduct, and
... a formal course in Legal Ethics will not supply the proper sort of
character training for students who are not the 'right kind.' ' 89 Henry
Drinker, perhaps the most prominent legal ethicist of the mid-twentieth
century, reflected this view when he observed that "Russian Jew
boys" were disproportionately "guilty of professional abuses" because
their family background and education did not inculcate them in
85. COHEN, supra note 65, at 19.

86. See, e.g., Cramton & Koniak, supra note 27, at 146-47 ("Many law school
faculties remain convinced that [legal ethics] is unteachable .... "). In the 1920's, for
example, leading law schools refused to teach an ethics course on the ground that "it is a
fallacy to assume that high ethical standards can be inculcated either by general
exhortations or by case method drill in legal etiquette." ALFRED ZANTZINGER REED,
PRESENT-DAY LAW SCHOOLS IN THE UNITED STATES AND CANADA 255 n.3 (photo. reprint
1987) (1928).
87. See infra notes 93-96. See also Rhode, supra note 20, at 36; see also Pipkin,
supra note 25, at 265.
88. For example, in his classic observation, Sir Henry Maine described the move
"from Status to Contract" as a move from a "society in which all the relations of Persons
are summed up in the relations of Family... towards a phase of social order in which all
these relations arise from the free agreement of Individuals." HENRY J. S. MAINE,
ANCIENT LAW 99-100 (Ernest Rhys 1927); see also MARY ANN GLENDON, THE
TRANSFORMATION OF FAMILY LAW 292 (1989) (describing the premodern notion "that
family and marriage were the essential determinants of an individual's economic security
and social standing").
89. Charles H. Kinnane, Compulsory Study of Professional Ethics by Law Students,
16 A.B.A. J. 222, 222 (1930) (delineating opposing views on the topic of required
ethics courses).
American ideals.'
The second manifestation of this view, common in legal academia
today, incorporates Drinker's view that family and environmental
influences prior to law school determine law students' and lawyers'
ethics. 9' Rather than associate unethical conduct with particular
groups,92 it relies on the notion that a person's capacity for moral
development maximizes once a person reaches adulthood. 93
By their own terms, these perspectives are unpersuasive. Even if a
student's moral development was generally complete before law
school, that student would still have to apply this moral framework to
the pursuit of law. John Mixon and Robert Schuwerk observe that
"while law students have well-formed personal values stemming from
family, church, and society, they nonetheless have relatively
unsophisticated and unformed ideas of what it means to be a 'good
lawyer.""
Research demonstrating that values are malleable in adulthood
renders these perspectives even less persuasive. Psychologists have
shown that adulthood, like childhood, is a time of personal growth and
90. STEVENS, supra note 62, at 184 n.41 (citing 1929 A.B.A. PRoc. 622-23). Drinker
contrasted foreign born Jews with "many splendid Jewish lawyers and judges" he knew
who were born in the United States. Id. Drinker's point was that the requirement of a
college education for admission to law school served as a proxy for identifying persons
of the right class and right values. See id. at 176. During the twentieth century, bar
leaders sought to raise the prerequisites for law school education in order to limit or
abolish the proprietary, often night law schools that admitted large numbers of poor and
immigrant students, many of whom lacked high school educations. See id. at 99-101.
As one bar leader observed, "[ylou can produce a moral and intelligent bar, by raising the
standard, not only of education, but along economic lines so that every Tom, Dick and
Harry cannot come to the Bar." id. at 100 (quoting Franklin Danaher, 3 AM. L. SCH.
REV. 35 (1911)).
91. See, e.g., Rhode, supra note 20, at 31 (describing this perspective, Rhode
explains, "Other educator's conclude that postgraduate courses in ethics offer too little,
too late: childhood socialization, situational pressures, and practice norms can hardly be
offset through occasional sermonizing by academics.").
92. While negative stereotypes similar to Drinker's are not so commonly expressed
today, they are not entirely absent from the academy. See Verhovek, Sam Howe, Texas
Law Professor Prompts a Furor Over Race Comments, N.Y. TIMES, Sept. 16, 1997, at
A28 (reporting that law professor Lino Graglia stated that "black and Mexican-American
students were 'not academically competitive' with white students at the nation's top
universities").
93. See, e.g., Pipkin, supra note 25, at 266-67 (Pipkin states, "Proponents of this
view believe that moral character is malleable only at an early age and that the value
systems which underpin ethical judgments (or explain the lack of them) are so deep-
seated in adults as to be immutable.").
94. John Mixon & Robert P. Schuwerk, The Personal Dimension of Professional
Responsibility, LAW & CONTEMP. PROBS., Summer-Autumn 1995, at 87, 98 (applying
insights from Andrew S. Watson, A Psychiatriston the Law School Faculty: Influences
on Professional Careers, 16 LAW MED. & HEALTH CARE 240 (1988)).
development. 95 Not surprisingly, studies reveal that moral

development continues "after the age of 18."96 As the Committee on
Professionalism of the ABA Section of Legal Education and
Admissions concluded, "[tihe once widely held view that ethical
precepts are fully formed before law school has been proven to be
untrue." 97
Research further confirms that law school in particular is a time
when students' values change. For example, political scientist Robert
Stover documented the law school experience and its effect on students
as making them less altruistic and less willing to work in a public
interest job.98 Further underscoring the dramatic impact of a law
school on a law student's personal development is an American Bar
Foundation study reporting that law students' rate of significant mental
health problems begins at an average rate but rises to as much as four
times the average by graduation." Other studies support the specific
proposition that ethics can be taught. Deborah Rhode notes that
"[m]ore than a hundred studies evaluating moral education courses
find that well-designed curricula can significantly improve capacities of
moral reasoning. . ..",0
The literature on legal ethics education, however, is less definitive.
Some commentators have found ethics education to be significant,
95. See, e.g., GAIL SHEEHY, PASSAGES (1974) (discussing research that illustrates
adulthood as a time of personal growth).
96. Mordecai Nisan & Lawrence Kohlberg, Universality and Variation in Moral
Judgment: A Longitudinal and Cross-Sectional Study in Turkey, 53 CHILD DEV. 865, 869
(1982).
97. TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 22. The Committee
explained, "[jiudgement is an essential element of lawyering; and the failure to
emphasize its importance in the classroom sends out the negative image that it is
unimportant." Id.
98. See ROBERT STOVER, MAKING IT AND BREAKING IT: THE FATE OF PUBLIC INTEREST
COMMITMENT DURING LAW SCHOOL 34-35 (Howard S. Erlanger ed., 1989) (claiming that
"during law school the number of ... students who preferred that their first job be in
public interest law declined markedly, and this shift can be explained in terms of
changes in the students' values and expectations"); see also RICHARD D. KAHLENBERG,
BROKEN CONTRACT: A MEMOIR OF HARVARD LAW SCHOOL (1992) (providing an account
of a Harvard law student's experience); Robert A. Solomon, Teaching Morality, 40
CLEVE. ST. L. REV. 507 (1992) (advocating the establishment of more legal clinics at
law schools).
99. See G. Andrew H. Benjamin et al., The Role of Legal Education in Producing
Psychological Distress Among Law Students and Lawyers, 1986 AM. B. FOUND. RES. J.
225, 236 (1986). The researchers explained that, "professional schools are highly
invasive institutions which exert intense control by purposely influencing beliefs,
values, and personality characteristics of students." Id. at 251-52.
100. Rhode, supra note 20, at 46-47. However, she notes that, "[tlhe extent to which
enhanced capacities for ethical analysis affect ethical conduct is more difficult to
assess." Id. at 47.
while others have not.'0 ' Despite these mixed findings, Deborah
Rhode observes that "[t]here is ...more evidence on the effectiveness
of professional responsibility instruction than there is on the
effectiveness of most professional education.""
Consequently, the contention that adults do not develop morally is a
weak justification for resistance to teaching legal ethics, as is the faith
in existing professional structures and the belief that law is purely a
science." Whatever authority these three views once had, they
possess little viability today. It is now time for law faculties to
consider teaching ethics seriously.
IV. TEACHING ETHICS SERIOUSLY

A new ethics curriculum must be designed which places legal ethics
at the center of the law school curriculum, free of the misconceptions
of the past and faithful to a commitment to developing ethical
practitioners. At a minimum, legal ethics education must include a
required first year, first semester course of at least three credits, a
required advanced course of at least three credits, and pervasive
teaching throughout the curriculum."°
The central role of legal ethics in the curriculum is warranted by its
status as the single most important subject in law school.'0 5 Legal
ethics is the only subject taught in law school which every student will
101. See, e.g., Thomas E. Willging & Thomas G. Dunn, The Moral Development of
the Law Student: Theory and Data on Legal Education, 31 J.LEGAL EDUC. 306, 351-57
(1982) (discussing results of various studies which lend support to both sides of the
ethics education issue).
102. Rhode, supra note 20, at 48. She adds that "the evidence we do have suggests
that mainstream courses do a relatively poor job in preparing professionals for the
skills that are most crucial in practice." Id.
103. See supra notes 93-99 and accompanying text discussing studies indicating that
adulthood is a time of personal growth and development, and supra notes 78-86 and
accompanying text discussing the problems with the belief that law is purely a science.
104. This suggestion is similar to proposals of Cramton, Koniak, and Rhode. See
Rhode, supra note 20, at 54 (recommending "a required introduction to professional
responsibility issues in the first year, an upper-level course that gives them central
treatment, and efforts at integration in other core courses and in special supplemental
events... "). Where it differs is in making the first year course the equivalent of other
first year required courses and in making the required upper class course a contextual
ethics course. At least one law school, Notre Dame, requires two ethics courses,
including a first year course. See David T. Link, The Pervasive Method of Teaching
Ethics, 39 J. LEGAL EDUC. 485 (1989) (discussing the curriculum at Notre Dame Law
School), see also Roger E. Schechter, Changing Law Schools to Make Less Nasty
Lawyers, 10 GEO. J. LEGAL ETHICS 367, 393 (proposing a required first year
professionalism course). Another teaches two years of legal ethics and professionalism
for skills. See Molitemo, supra note 40, at 106.
105. See text accompanying notes 10-11.
encounter in practice, regardless of their specialty. It establishes the

foundation for the vital decisions that students will have to make
regarding how they will live their lives as lawyers. These decisions,
in turn, will shape how the public perceives lawyers and the legal
system. Within law school, legal ethics connects the entire
curriculum. Just as legal ethics issues arise in every class, the teaching
of legal ethics includes a broad range of topics drawn from other
subjects.
A required first year, first semester, legal ethics course is essential
for the implementation of a central role of legal ethics in the law school
curriculum 1° because the first year courses signal what it means to
think and act like a lawyer.'0 7 As Howard Lesnick noted, "it is what is
imprinted in that initial immersion [in the first semester of the first
year], and not any broader message of the three years, that shapes
students' consciousness of what is important and not important to
being a lawyer."'" Equally important, the first year provides students
with the requisite tools to understand what the law means. Ethical
instruction from the start of law school is necessary in order to provide
students with an ethical framework to evaluate and question the ethical
implications of what they learn in other classes. 1' 9
Just as important as the placement of this course in the first semester
of the first year is the requirement of three or more credits. The
designation of credit hours serves both a symbolic and functional
106. In a recent survey of 131 law schools, researchers found that just five schools
offered a two-to-four credit ethics course in the first year, and only another three schools
offered lawyering courses with significant ethics and professionalism components. See
TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 40. Eight other schools
offered one credit first year courses, while three more claimed they included legal ethics
in substantive law courses. See id. at 40-41.
107. See, e.g., Nancy L. Schultz, How Do Lawyers Really Think?, 42 J.LEGAL EDUC.
57, 57 (1992) ("[N]early everyone agrees-in an 'indefinable chant whose repetition
suggests sacred meaning'-that the purpose of law school is to teach every student to
'think like a lawyer."').
108. Howard Lesnick, Infinity in a Grain of Sand: The World of Law and Lawyering as
Portrayed in the Clinical Teaching Implicit in the Law School Curriculum, 37 UCLA L.
REV. 1157, 1159 (1990); see also Elizabeth D. Gee & James R. Elkins, Resistance to
Legal Ethics, 12 J.LEGAL PROF. 29, 34 (1987) (advocating psychological grounds for
"[t]eaching of legal ethics in the first year" because "[t]he first year is a socialization
period in which a student's ethical sensitivity and commitment are subject to
influence"); Rhode, supra note 20, at 51 (commenting that if legal ethics teaching only
occurs after the first year, "many students will be too cynical or preoccupied to give it
full attention").
109. Rhode, supra note 20, at 51. Rhode notes that absent first year instruction,
students "will also have lacked the background to raise relevant issues in the other
classes." Id.
purpose. While three credits is not sufficient to provide mastery,"10 it

does afford a reasonable introduction. In contrast, offering less than
three credits sends a message that legal ethics is less important than
other first year courses. Teaching legal ethics seriously requires that
students understand that legal ethics is the most important course.11
Sending that message also mandates requiring an upper-class
advanced class in ethics of at least three credits. The combination of
requiring a first year class and an advanced class would place legal
ethics in a unique position of importance in most schools. In addition
to affording another opportunity to address basic issues which the first
year course cannot cover, the upper-class offering would provide
students with lessons which will be more effective once they have
gained a greater command of substantive law and some experience in
legal work. ' 2 To prepare the students for the issues they will address
in practice and to engage them in the material, the advanced courses
should be contextually grounded in practice areas, such 13
as business
transactions, criminal advocacy, or public interest law.
Making legal ethics the most important subject also requires the
pervasive teaching of legal ethics. Pervasive teaching is essential for
both symbolic and substantive purposes. It offers the opportunity to
address issues not covered in the required ethics courses and teaches
students the skills needed to identify and analyze issues in settings
where ethics is not the primary focus of attention. Absent pervasive
110. See TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 44-45; see also
Cramton & Koniak, supra note 27, at 166 ("Allocating only one or two credit-hours
makes it difficult or impossible to do the subject matter justice.").
I 11. One of the designers of a two-credit first year course in legal ethics at the
University of California at Berkeley School of Law (Boalt Hall) conceded that "[b]y
keeping the course at two units, when other first-year courses were taught in three-, four-
, or five-unit blocks, we made it clear that Legal Profession was, in our view, the least
important of those courses." McG. Bundy, supra note 44, at 30.
112. Arguments against teaching legal ethics in the first year often rely on the
necessity of work experience and substantive knowledge to learning legal ethics. See,
e.g., Cramton & Koniak, supra note 27, at 165-66 ("[A] sophisticated discussion of
some ethics issues requires substantive knowledge of legal concepts not ordinarily
taught in the first year."); Rhode, supra note 20, at 51 ("If the course occurs in the first
year of training, many students will not yet know enough to grasp the full dimensions of
professional dilemmas.").
In light of the traditional perception of legal ethics as doctrinally simplistic, these
arguments are somewhat ironic. See supra note 55 and accompanying text. Moreover,
basic coverage of the rules and cases, professional role, and moral reasoning does not
necessarily demand any more special knowledge and experience than other first year
courses. Drafting a contract would certainly add to a student's understanding of contracts
class, and actually assisting in litigating a case would certainly enrich a student's study
of civil procedure, but most schools do not require such prerequisites.
113. See, e.g., Daly, et al., supra note 25, at 200.
1 738 Loyola University Chicago Law Journal [Vol. 29
teaching, the law school sends a message that the "ethical dimensions"
of legal education and law practice are marginal." 4
While this pervasive approach completes the proposal for teaching
ethics seriously, a number of pedagogical and political challenges
remain. The proposal leaves unanswered the question of which
teaching method is most effective." 5 Further, it provides no roadmap
to ensure that faculty will make the commitment necessary to sustain a
viable, pervasive teaching program" 6 or for navigating politics with
regard to the allocation of resources and credit hours."11
The proposal does, however, offer a possible solution to Pipkin's
curricular paradox." 8 While acknowledging that meaningful ethics
education requires attention to the moral development of students,
Pipkin asserts that this attention clashes with the socialization students
have received at law school, which consequently devalues ethical
courses." 9 The proposal for teaching ethics, however, changes the
socialization of law students by making legal ethics the most important
subject. This shift should change how students perceive the methods
and content of their legal ethics lessons.
114. See Carrie J.Menkel-Meadow, Can a Law Teacher Avoid Teaching Legal
Ethics?, 41 J. LEGAL EDUC. 3, 5-9 (1990); see generally Rhode, supra note 20.
115. The Cramton & Koniak proposal suggests, at a minimum, a required first-year,
first-semester course of at least three credits, a required advance course of three credits,
and pervasive teaching throughout curriculum. The Moliterno proposal requires two
years of legal ethics and professionalism skills courses to be taught. Compare
Moliterno, supra note 40, with Cramton & Koniak, supra note 27.
116. See Cramton & Koniak, supra note 27, at 168 ("The pervasive approach... will
not succeed unless the faculty as a whole commits to it and institutional monitoring
ensures that individual faculty members take their responsibility seriously."); Rhode,
supra note 20, at 52 (providing that without adequate commitment, pervasive teaching
becomes a digression). Fortunately, the availability of Deborah Rhode's excellent text
on teaching ethics pervasively will make this project much easier to facilitate. See
Rhode, supra note 20.
117. See, e.g., TEACHING AND LEARNING PROFESSIONALISM, supra note 8, at 15
(explaining that "[Ilaw school curriculum reform is a tedious and often frustrating task
and seems to work best when modest changes are made at the margin by adding one or
two additional courses") (footnotes omitted); Cramton & Koniak, supra note 27, at 165
(adding that "competition for hours in [the first] year poses a severe obstacle to the
introduction of any new course"); Gee & Elkins, supra note 108, at 34-48 (discussing
"barriers to change" in increasing attention to ethics in law school curriculum).
118. Pipkin, supra note 25, at 250-53, 272-75.
119. Id. Pipkin points out that "54 percent of [students] enrolled in courses on
professional responsibility indicated that other students were 'not very' or 'not at all'
concerned [with professional ethics], in contrast to the 94 percent of students
"concerned about making money." Id. at 274.
V. CONCLUSION
This essay's proposal for teaching ethics seriously will certainly
send a message that law schools should consider ethical education to
be a high priority. But will it actually make a difference in the ethical
conduct of graduates? Although research suggests it will, 20 we will
not know for sure unless we try. Derek Bok made a similar point with
regard to the introduction of ethics courses. He asked, "Will
[students] behave more ethically? We may never know. But surely
the experiment is worth trying, for the goal has never been more
important to the quality of the society in which we live."''
Whatever uncertainty arises from teaching ethics seriously, we can
be certain of the consequences of failing to do so. Given the current
weakness of the traditional justifications for disdaining the teaching of
legal ethics and the perception that lawyers' ethics are in decline, law
schools that refuse to make legal ethics the most important subject are
sending a powerful message. To paraphrase Ronald Dworkin once
again, if the law schools do not teach legal ethics seriously, then they
do not take the conduct and reputation of lawyers seriously either.'2
120. See infra notes 91-96 and accompanying text (discussing whether education can
promote ethical conduct).
121. Derek C. Bok, Can Ethics Be Taught?, CHANGE, Oct. 1976, at 26, 30; see
Rhode, supra note 20, at 43 (quoting Derek C. Bok, Can Ethics Be Taught?, CHANGE,
Oct. 1976, at 26, 30).
122. DWORKIN, supra note 1, at 205; see also Cramton & Koniak, supra note 27, at
157 (arguing that if law schools do not begin to teach ethics seriously, they should stop
"lying" about the importance of legal ethics to the legal profession and the legal
academy).
Nurturing Caring Lawyers:
Rethinking Professional Ethics
and Responsibility in India
— Ipshita Sengupta*
In light of the declining standards and public trust and confidence

in the legal profession, there is a need to emphasise a deeper under-
standing of professional ethics among lawyers and perhaps articulate a
different notion of professional responsibility that extends beyond the
standards of professional conduct and etiquette for lawyers devised by
the Bar Council of India and the limited practical learning imparted
in law schools through legal clinics. The exaggerated focus on rules,
and legalistic thinking and analysis has distanced lawyers from their
ethical sensibilities and goals of truth and justice. In order to reconnect
lawyers to the moral dimensions of their profession, it is critical to root
their professional relationships and practices in social context and not
isolate their private morality as distinct from their profession, rather
integrate their individual emotions, feelings and instincts into profes-
sional decision-making. In this regard, Carol Gilligan’s ethic of care
may help lawyers to reimagine and reconstruct the legal profession in
India in ethical and responsible ways.
I. I ntroduction
India has the second largest legal profession in the world with approx-
imately one million lawyers1 with more than 80,000 lawyers graduating
each year from around 900 government and private law schools.2 Despite an
increasing demand for admission into law schools, the legal profession contin-
ues to be the subject of public misunderstanding and mistrust.
*
B.A. LL.B. (Hons.), The WB National University of Juridical Sciences, LL.M., International
Development Law and Human Rights, Warwick University. The author works on legal and
policy issues at the United Nations High Commissioner for Refugees (UNHCR). The author
would like to thank the anonymous editors and peer reviewers for their comments on the
paper.
1
The Indian Legal Profession, Harvard Program on the Legal Profession (2011), available
at http://www.law.harvard.edu/programs/plp/pdf/Indian_Legal_Profession.pdf.
2
Id.
14 JOURNAL OF INDIAN LAW AND SOCIETY [Vol. 5 : Winter]
As concerns about the falling ethical standards of the legal profession are
growing, both the Bar and the legal academy have undermined the importance
of instilling normative values in lawyers. The exaggerated importance placed
on rules, claims and defences and analytical reasoning in traditional legal
education has insulated students from learning about the relevance of social
context and processes, moral reasoning, and care and connection between law-
yers and clients.3 The preoccupation with legal procedure in teaching and legal
practice has lost sight of the fact that procedural guarantees are a means to the
end of truth of justice and not an end in itself.4
The dominant understanding of legal ethics is constructed in terms of

rights where lawyers act by prioritising their individual freedom and autonomy
and undermining the ideals of care and community.5 This essay explores the
possibility of rethinking lawyer’s ethics in terms of an ethic of care.
II. Taking P rofessional Ethics Seriously
The negative public perception of legal practitioners is reflected in the

image of the lawyer in popular consciousness as selfish fortune-seekers rather
than those seeking to serve.6 Values like money, power and the uncompromis-
ing drive to ‘win’ are fast replacing values like integrity, decency and mutual-
ity in the legal profession.7 Susan Daicoff has identified a ‘tripartite crisis’ in
the modern legal profession- decline of professionalism, negative public opinion
of lawyers and the legal profession, and increase in lawyer dissatisfaction and
dysfunction.8
Such erosion of values begins much before a lawyer enters profes-

sional practice; from the very first year at the law school, continues and
deepens during the law school years and manifests itself during legal prac-
tice. While clients are often alienated by their relationship with their lawyer,
3
Barbara Bezdek, Reconstructing a Pedagogy of Responsibility, 43 Hastings L.J. 1159,
1160 (1991-92), available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.
cgi?article=1651&context=fac_pubs.
4
Dallin H. Oaks, Ethics, Morality and Professional Responsibility, 3 BYU L. Rev.
591, 596 (1975), available at http://digitalcommons.law.byu.edu/cgi/viewcontent.
cgi?article=1039&context=lawreview.
5
Stephen Ellman, The Ethic of Care as an Ethic for Lawyers, 81 The Geo. L.J. 2665, 2667
(1992-1993).
6
Chandra Krishnamurthy, Legal Education and Legal Profession in India, 36(2) Int’l. J.
Legal Info. 245, 260 (2008), available at http://scholarship.law.cornell.edu/cgi/viewcontent.
cgi?article=1136&context=ijli.
7
Ann Juergens, Practicing what we Teach: The Importance of Emotion and Community
Connection in Law Work and Law Teaching, 11 Clinical L. Rev. 901 (2005), available at
http://open.wmitchell.edu/cgi/viewcontent.cgi?article=1191&context=facsch.
8
Susan Daicoff, Lawyer Know Thyself: A Review of Empirical Research on Attorney Attributes
Bearing on Professionalism, 46 The Amer. U. L. Rev. 1337, 1338 (1997), available at http://digi-
talcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1406&context=aulr.
NURTURING CARING LAWYERS 15
lawyers themselves complain about their disillusionment and cynicism with the
profession.
If indeed, law is a noble profession, meant to help and heal, then why is
it that the legal system is becoming increasingly inaccessible to the poor and
more and more lawyers are turning away from ideals of justice and public ser-
vice, choosing financial gain over professional ethics and obligations?9
The moral neutrality of the legal profession in the face of commerciali-

sation, specialisation and bureaucratisation of legal practice,10 and a technical
legal education has systematically undermined ethical considerations, leaving
lawyers with ‘inferior judgment capacities, a narrower range of moral sensibil-
ities and a reduced personal commitment to moral behaviour’.11 Despite pub-
lic scepticism about the legal profession, there has been limited critical enquiry
about the ethical dilemmas raised by legal practice. The ‘what’12 and ‘how’13 of
lawyers’ ethics have remained largely unaddressed.
It has been observed that lawyers’ moral reasoning and decision-making

process is more homogenous as compared to the general public.14 Typically,
lawyers embody traditionally acknowledged masculine values of rational-
ity, neutrality and impartiality in a fair and predictable legal system while
the public also values feminine ideals of care and compassion.15 This gap in
understanding between lawyers and the public has led to an erosion of public
confidence in the legal profession and cause lawyers to be perceived as cold,
uncaring, aggressive, competitive and overly rule-oriented’.16
It is no surprise, therefore, that more than 90 per cent of Supreme

Court lawyers appearing for the Advocates on Record (AOR) examination in
2013, failed the paper on ‘professional ethics and advocacy’ which asks critical
9
Chandra Krishnamurthy, supra note 6.
10
Donald Nicolson, Making Lawyers moral? Ethical codes and moral character, 25(4)
Legal Stud. 601, 625 (2005), available at https://pure.strath.ac.uk/portal/files/2175052/
LS_2025_4_20Nicolson_1_.pdf.
11
Id, at 626.
12
This refers to the content of lawyers’ ethics- how do lawyers resolve or how they ought to
resolve ethical issues in legal practice. Donald Nicolson, Making Lawyers moral? Ethical codes
and moral character, 25(4) Legal Stud. 601, 603 (2005), available at https://pure.strath.ac.uk/
portal/files/2175052/LS_2025_4_20Nicolson_1_.pdf.
13
This refers to the content of lawyers’ ethics-how do lawyers resolve or how they ought to
resolve ethical issues in legal practice. supra note 10, at 603.
14
Susan Daicoff, supra note 8, at 1409.
15
16
Id. (Research shows that law schools value attributes such as logic, thinking, rationality, jus-
tice, fairness, rights and rules which are considered as traditionally masculine traits. Feminine
traits such as interpersonal connections, emotional response, altruism, sociability etc are
undermined. The popular imagery of a good, effective lawyer is that of an aggressive, compet-
itive, dominant person who is not necessarily guided by ideals of care, compassion, warmth
and deference).
questions such as harmonisation of duties as a lawyer and officer of the court;

whether or not to take up cases inconsistent with one’s personal value system;
the way lawyers should conduct themselves etc.17 A practicing advocate who
failed the paper challenged the results on the grounds that the examination
questions were related to the daily functioning of the Supreme Court and gen-
eral ethics of advocacy18 as if such knowledge and understanding is immaterial
to legal practice.
Increasingly, we find that law students graduating from the elite law
schools in India are attracted to careers that disconnect them from their
‘intrinsic’ values and motivations like integrity, care, help etc. and they drift
towards ‘extrinsic’ orientations like winning, high salaries, social status etc. As
a result, they begin to understand and practice ‘professionalism’ as separate
from job/personal satisfaction when, in reality; they are inseparable as one’s
quality of life and professional reputation ‘manifest from one’s choice of opti-
mal goals, values and motives’.19
Intense competition among lawyers in a tight market for legal services

has encouraged aggressive, hostile and dishonest professional behaviour. Too
many law students graduate from law school with uncertain professional goals,
values and standards, which make them susceptible to adopt ‘hostile and over-
reaching behaviour’ to achieve professional prestige and material success.20 The
rapid commercialisation of legal practice is gradually de-professionalising law
and turning it into a business, causing an ethical deficit among lawyers.21 The
competitive and adversarial environment in law schools pushes young aspir-
ing lawyers to transform themselves and their value systems to fit the lawyer
‘norm’.22
A recent empirical evaluation of civil litigation in India by Eisenberg,

Kalantry and Robinson23 has shown that although improved economic and
non-economic24 well-being usually increases reliance on formal institutions
such as courts leading to higher litigation rates, the civil filings have reduced
17
Utkarsh Anand, 93% Lawyers fail paper on Ethics, Advocacy, Indian Express (April 10, 2013),
http://www.indianexpress.com/news/93—lawyers-fail-paper-on-ethics-advocacy/1099986/.
18
Id.
19
See Lawrence S. Krieger, The Inseparability of Professionalism and Personal Satisfaction:
Perspectives on Values, Integrity and Happiness, 11 Clinical L. Rev. 425 (2005), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=549361.
20
21
22
23
Theodore Eisenberg, Sital Kalantry & Nick Robinson, Litigation as a Measure of Well-being,
Cornell Law Faculty Working Papers, Paper 99 (2012), available at http://scholarship.law.
cornell.edu/cgi/viewcontent.cgi?article=1102&context=clsops_papers.
24
Id, at 34. (The study recorded higher litigation rates in those Indian states with higher human
development indices (HDI) which suggest that people are more likely to use the courts when
they are economically, socially and physically better off. The HDI has both an economic
in recent years despite an overall improvement of human well-being in India.

This may be attributable to judicial delays due to increasing court backlogs. As
of 2008, India’s lower court backlog was more than 26 million cases25 which
may be attributed to poor court infrastructure, overburdened court dockets,
high rate of adjournments, insufficient number of judges and poor legal train-
ing.26 An analysis of civil filings across all Indian states between 2005-2010
shows that on average, it takes more than four years to clear court backlogs.27
Robinson’s analysis has also shown that it takes the Supreme Court of
India, four years, on average, to decide a matter28 and everyone cannot access
it equally as most of the admitted appeals are company, tax, service and land
acquisition matters from Delhi and other wealthy states.29 Contrary to pop-
ular belief, only two per cent of the Supreme Court’s cases are writ petitions
and social action litigation (SAL) comprises only one per cent.30 A 2009
World Bank analysis of Supreme Court data showed that on average, 260 out
of 60,000 cases per year are SALs (0.4 per cent), a large majority of which
are brought through formal channels and not through letters and handwritten
petitions received from ordinary, public spirited citizens.31
On average, it takes more than ten years for a litigant to get a final ver-
dict on their case.32 The Indian litigation experience demonstrates that too
many cases are filed but too few are timely adjudicated33 and potential litigants
are slowly turning away from courts.34
component, reflected in higher income per capita and a non-economic component, such as
health, education, etc.).
25
See Vivek Kanwar et al., Justice without Delay: Recommendations for Legal and Institutional
Reforms in the Indian Courts, 2(1) Jindal Global L. Rev. 9 (2010), available at http://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1679350; see also Kannan Kasturi, Civil Litigation? No,
Thanks, India Together (July 12, 2009), available at http://www.indiatogether.org/2009/jul/
gov-civil.htm.
26
For details, see Jayanth K. Krishnan et al, Grappling at the Grassroots: Access to Justice in
India’s Lower Tier, 27 Harv. Hum. Rts. J. (2014), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2297152.
27
Theodore Eisenberg, supra note 23, at 15. (Table 2. India State’s Civil Filings & GDP, 2005-
2010, HDI, Literacy, Population Density, Backlog).
28
Nick Robinson, A Court Adrift, Frontline (3-5-2013), available at http://www.frontline.in/
cover-story/a-court-adrift/article4613892.ece.
29
Robinson’s study shows that in the last five years, the Supreme Court has adjudicated mainly
criminal matters (21%), service matters concerning government employees (16%), direct and
indirect tax matters (13%) and land acquisition matters (9%).
30
Id.
31
Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving?, World
Bank, Policy Research Working Paper 5109, 10 (2009), http://elibrary.worldbank.org/doi/
pdf/10.1596/1813-9450-5109.
32
Nick Robinson, supra note 28.
33
Theodore Eisenberg, supra note 23.
34
Theodore Eisenberg, supra note 23.
In one of the early treatises on the modern Indian legal profession, Marc
Galanter asked whether Indian lawyers can adapt outside the adversarial set-
ting of courtrooms to collaborate with others to find solutions for substantive
problems of their clients, and whether they can think beyond their rule-mind-
edness to develop creative and practical problem-solving approaches.35 He sug-
gested that legal education should develop the capacity to impart these new
skills and attitudes.
The increasing court backlogs and judicial delays are giving rise to alter-
native forms of dispute resolution such as mediation, which demands creative
and collaborative approaches to lawyering. Yet, law schools continue to teach
students to ‘think like lawyers’ practicing in an adversarial setting and stress
on doctrinal learning methods focusing on legal analysis of legislation and case
law.
III. Bridging the G ap between L egal Ethics and the

L egal P rofession: What C an L aw Schools Do?
Traditional legal education approaches the subject of law within the

imagined paradigm of a perfect world where law equals justice and all that
lawyers need to do is apply legal rules in each case.36 However, in the real
world, legal services are not always available or affordable, legal aid is limited,
states do not comply with their legal obligations, laws are not comprehensive
and clear, judges do not reason consistently, police and courts are not efficient
and lawyers are not ethical.37 As a result, lawyers are deprived of any training
on how to respond to the uncontrollable variables that often challenge the pre-
dictability of legal outcomes.38
Marc Galanter identified the malaise of Indian legal education as

follows39 –
“The emphasis on litigation and the barrister’s role reinforces lawyers’

rule-mindedness. Where the lawyer’s task is to win disconnected bat-
tles, rather than to pattern relationships, there is little to induce the
practicing lawyer to go beyond the kind of conceptualism that is char-
acteristic of much of Indian legal scholarship and that pervades legal
35
Marc Galanter, Introduction: The Study of the Indian Legal Profession, 3 L. & Soc. Rev. 201,
217 (1969), http://marcgalanter.net/Documents/papers/scannedpdf/studyoftheindianlegalprof.
pdf.
36
Colin G. James, Lawyers’ Wellbeing and Professional Legal Education, 42(1) The Law Teacher:
The Int’l. J. Legal Edu. 85, 92 (2008), available at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2322339.
37
Id, at 93.
38
Id.
39
Marc Galanter, supra note 35, at 208.
education. Writing and teaching are, with significant exceptions, con-

fined to close textual analysis on a verbal level with little consideration
either of underlying policy on the one hand or problems of implemen-
tation on the other”.
Upendra Baxi has long recognised the need for a socially relevant legal
education which requires legal pedagogy to move beyond the lecture method
of instruction and be embedded in the socio-legal context and legal curriculum
to acknowledge and address the contemporary problems of society and the cor-
responding tasks before law and lawyers.40
What has also been ignored by the legal profession is the subject of
obligations. Law schools and legal professionals have emerged as ‘gladiators,
guarantors and enforcers’ in relation to rights41 but have remained uncharacter-
istically silent on the subject of responsibilities.
It has been argued by some legal educators that law students cannot be
taught ethics and morality in law school because these notions are developed
before they enrol42 and the blame is often shifted to the Bar which is accused
of lowering standards of professional discipline and failing to provide the kind
of moral and legal leadership expected from officers of the court.43 It is com-
monly believed that lawyers will learn to grapple with complex intellectual and
emotional issues with their experience of practice.44
The dominant legal pedagogy offers lawyers an ‘excused status’, i.e. law-
yers are seen as merely facilitating transactions, solving problems and working
within the legal system.45 Lawyers are generally absolved as long as they use
clean means, no matter what the end pursued by their clients.46 Flynn argues
that greater harm is caused when lawyers engage in amoral conduct and have
no standard of right and wrong by which to judge their conduct.47
Studies in American law schools have found that law schools de-empha-
sise the role of human relationships and connections in lawyering by teaching
40
Upendra Baxi, Notes Towards a Socially Relevant Legal Education: A Working Paper for the
UGC Regional Workshops in Law 43 (1975-77), http://www.ugc.ac.in/oldpdf/pub/report/1.pdf.
41
Dallin H. Oaks, supra note 4, at 597 See also Elliot Richardson, On Behalf of Obligations, 8
Lincoln L. Rev. 109 (1973).
42
Id, at 593 See also Murray L. Schwartz, Legal ethics v. Common Notions of Morality, Learning
& the Law 40, 47-48 (Spring 1975).
43
Id. at 594 See also Bayless Manning, If Lawyers were Angels: A Sermon in One Cannon, 60(7)
Amer. Bar Asso. J. 821 (1975).
44
Andrew S. Watson, Lawyers and Professionalism: A Further Psychiatric Perspective on Legal
Education, 8 Mich. J. Legal Ref. 248, 252 (1974-1975).
45
Barbara Bezdek, supra note 3, at 1162.
46
Barbara Bezdek, supra note 3, at 1162.
47
See John J. Flynn, Professional Ethics and the Lawyer’s Duty to Self, 1976(3) Wash. U. L. Q.
429 (1976), http://digitalcommons.law.wustl.edu/lawreview/vol1976/iss3/3.
law students to ‘think like a lawyer’ and remain emotionally neutral which
may cause psychological discomfort among those students who are forced to
deny their care orientation in favour of an analytical, rule-based, rights orienta-
tion.48 When law schools refrain from identifying and clarifying ethical issues
associated with legal practice, they fail in their duty to train future legal prac-
titioners to understand that value judgments are a significant part of his/her
function as a lawyer.49
The present legal curriculum does not engage in such critical conver-
sations as lawyers are socialised as ‘pragmatic problem solvers who get things
done, not poets who wallow in angst or therapists whose expertise is empa-
thy’.50 Law schools must realise that such conversations are not merely ques-
tions of private morality but constitute an important part of a lawyer’s
professional training.
Traditionally, the teaching of professional ethics and responsibility in

Indian law schools has struggled to establish intellectual legitimacy, and the
curriculum has remained limited to instruction about a code of conduct for
legal practitioners- essentially, a list of do’s and don’ts! Professional ethics
courses offered in Indian law schools adopt a legalistic approach focused on
enforceable laws and rules rather than addressing issues concerning a lawyer’s
moral conduct and inquiring their role in perpetuating injustices.51
While it is important to learn the Code of Ethics, an understanding of

professional responsibility is incomplete unless legal education reinforces cer-
tain positive behaviours which are critical to effective and ethical practice of
law.52 As it stands today, courses on professional ethics are not taken seriously
by the faculty or the students in law schools.
However, there are a few positive examples, developed by some pro-

gressive law teachers that have recognised the need for law students to gain
a deeper understanding of ethical issues by experiencing the legal system at a
social and personal level, and connecting to their professional role at an emo-
tional level.53
48
Sandra Janoff, The Influence of Legal Education on Moral Reasoning, 76 Minn. L. Rev. 193, 234
(1991).
49
Murray L. Schwartz, Legal ethics v. Common Notions of Morality, Learning & the Law 40,
47-48, 50 (Spring 1975).
50
Barbara Bezdek, Reconstructing a Pedagogy of Responsibility, 43 Hastings L.J. 1159, 1172
(1991-92).
51
Theresa Glennon, Lawyers and Caring: Building an Ethic of Care into Professional
Responsibility, 43 Hastings L. J. 1176 (1992).
52
Andrew S. Watson, supra note 44, at 250.
53
Colin G. James, supra note 36, at 95.
The Legal Theory and Practice (LTP) course in the University of

Maryland School of Law in the United States, attempted to rethink the dis-
course on professional responsibility in terms of an ethic of care.54 The course
focused on two key ideas- that the work of lawyers is deeply connected to
those disadvantaged by the legal system and that legal practice can be based
on care and connection.55 For law students struggling with negative feelings
about themselves and law school, the LTP course encouraged them to feel part
of a care network and combine intellectual and emotional aspects of lawyer-
ing.56 Classes on lawyering skills, interviewing and fact-finding emphasised on
responding to the clients’ goals and understanding their perspectives.57 A part
of the course focused on individual client representation and legal work which
encouraged law students to support each other and share their findings58 in
order to develop caring and cooperative approaches to legal practice.59
In a similar vein, the ‘humanising legal education’ movement that

emerged in the United States some years ago, made a sincere plea to law
schools to value the emotional experience of lawyering and put an emphasis
on human nature as the guiding force in legal education. Such reorientation
will lead law schools to reconsider their adversarial approaches to teaching law
and grading students, and adopt a more holistic and humanising outlook to
teaching and studying law.60 To reach a comprehensive resolution to any legal
problem, it is important for lawyers to take into account the emotional dimen-
sions of the problem by empowering and actively involving parties in problem
solving, thus promoting an emotionally intelligent justice.61
More than two decades ago, law professors, David Wexler and Bruce
Winick studied the therapeutic or anti-therapeutic impact of mental health law
on patients, their families and other relevant stakeholders. Subsequently, they
developed the idea of ‘therapeutic jurisprudence’ as a perspective that focuses
on the impact of the law on emotional life and psychological well-being.62 It
examines how the law, which consists of legal rules, legal procedures, and the
behaviour and roles of legal actors, often produces therapeutic or anti-thera-
peutic outcomes.
54
Theresa Glennon, supra note 51, at 1179.
55
Id.
56
57
58
59
60
Michael Hunter Schwartz, Humanising Legal Education: An Introduction to a Symposium whose
time came, 47 Washburn L.J. 235, 241 (2007-2008).
61
See Michael S. King, Restorative Justice, Therapeutic Jurisprudence and the Rise of Emotionally
Intelligent Justice, 34 Melb. U. L. Rev., (2008) http://www.austlii.edu.au/au/journals/
MULR/2008/34.html.
62
David B. Wexler., Therapeutic Jurisprudence: Issues, Analysis and Applications, 27 Seattle U.
L. Rev. 217, 217-222 (2000-01).
A convergence of these ‘vectors’, comprising of a number of new disci-

plines, such as collaborative law, preventive law, creative problem solving, holis-
tic justice, therapeutic jurisprudence, ethic of care, restorative justice etc., has
created a comprehensive law movement that explicitly recognises law’s poten-
tial as an agent of positive and interpersonal individual change and integrates
extra-legal concerns like morals, values, beliefs, personal, psychological and
community well-being etc. into legal practice.63
These innovative pedagogical models provide a basis for law schools in

India to reorient their legal curriculum to link ethical legal practice to psycho-
logical well-being and professional fulfilment. An integration of personal and
professional values, and an assimilation of analytical thinking and emotional
intelligence will allow lawyers to practice law with integrity, compassion, dili-
gence and enjoyment.64
IV. The Ethic of C are as a P rofessional

Model for L aw yers
The present structure of legal education divorces the intellectual side of a

student from his/her emotional side. The strong emphasis on analytical think-
ing in law schools deeply undermines the need for instilling a sense of ethical
responsibility in the students.
The adversarial legal system teaches law students from the very first year
of law school to argue against someone for the purpose of establishing that
they are right and others are wrong, thus, dangerously emphasising binary
thinking.65 Traditional legal education justifies a variety of practices focused on
the ‘self’ and to the detriment of others.66
As John J. Flynn observes,67
“Law schools may actually be creating amoral lawyers, whose skills of

rationalization, attempted division of intellectual and emotional sides
of their personalities, and insensitivity to ethical issues will become
increasingly dangerous in the highly complex, specialized, and competi-
tive world of law practice.”
63
Susan Daicoff, Law as a Healing Profession: The “Comprehensive” Law Movement, Bepress
Legal Series, Paper 1331 (2005), available at http://law.cwru.edu/lectures/files/2008-
2009/20090410_Daicoff_excerpt.pdf.
64
Colin G. James, supra note 36, at 96.
65
Carrie Menkel-Meadow, Is Altruism Possible in Lawyering?, 8(2) Geor. State U. L. Rev. 385,
387 (1991), http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1363&context=gsulr.
66
Id, at 386.
67
See John J. Flynn, Supra note 47, at 441.
Rand and Dana Jack’s research has shown three common responses to
the conflict faced by caring lawyers-denial of their care orientation and rejec-
tion of their emotional side; using one’s emotional side in one’s personal and
family life and one’s logical, analytical side at work; attempting to incorporate
a care orientation into lawyering.68 Although a focus on care orientation is a
potentially good response to this conflict, it is rarely invoked by lawyers.
In 1982, Carol Gilligan proposed the feminist ethic of care as a norma-

tive moral theory to establish the centrality of care in both the private and
public sphere. She advocates for the extension of care ethics to communities,
institutions and states to foster a holistic approach to moral or legal ques-
tions. In her thesis, Gilligan analysed the moral decision making processes
of girls and young women confronted with hypothetical and real dilemmas.
She questioned the six stage moral development theory proposed by Lawrence
Kohlberg69 on the ground that his theory ignores the ‘different voice’ of
women and girls.
Kohlberg reached his conclusions using male subjects as he observed that

women lack moral agency and are generally at an inferior stage of moral devel-
opment.70 In response, Gilligan prioritised the different voices of women and
concluded that men and women exercise different kinds of moral reasoning-
while men try to determine what is right or unjust, women focus on ‘how to
respond’.71 In other words, men represent the ethic of rights or justice based
on a set of legalistic rules applied to a set of facts while women represent the
ethic of care or responsibility who contextualise issues through relationships
and individual values.72 The ideal would be to hear or consider all voices, par-
ticularly marginalised and silenced voices.73
Gilligan beautifully explains the interdependence of justice and care as

follows74-
68
See Rand Jack & Dana Crowley Jack, Moral Visions and Professional Decisions: The
Changing Values Of Women And Men Lawyers 130-155 (1988).
69
See, Lawrence Kohlberg, The Philosophy Of Moral Development: Moral Stages
And The Idea Of Justice, Essays On Moral Development I (1981) (Kohlberg’s six stage
theory has three levels- The pre-conventional in which behaviour is based on obedience and
punishment, the conventional in which maintenance of good relations is paramount and the
post-conventional in which individual conscience is paramount).
70
Id.
71
Carol Gilligan, In A Different Voice 35 (1982).
72
Narnia Bohler-Muller, Developing a new jurisprudence of gender equality in South Africa,
Doctoral Thesis, Faculty of Law, University of Pretoria, South Africa 47 (Nov.
2005), available at http://upetd.up.ac.za/thesis/available/etd-06152006-123856/unrestrict-
ed/01thesis.pdf.
73
Id, at 90.
74
Carol Gilligan, Moral orientation and moral development; in Women And Moral Theory 10
(Eva Fedder Kittay & Diana T. Meyers eds., 1987).
“Theoretically, the distinction between justice and care cuts across the
familiar divisions between thinking and feeling, egoism and altruism,
theoretical and practical reasoning. It calls attention to the fact that
all human relationships, both public and private, can be characterised
both in terms of attachment, and that both inequality and detachment
constitute grounds for moral concern. Since everyone is vulnerable both
to oppression and to abandonment, two moral visions- one of justice,
and one of care- recur in human experience. The moral injunctions,
not to act unfairly toward others, and not to turn away from someone
in need, capture these different concerns”.
In Gilligan’s view, care is not just an emotional response but a coher-

ent moral perspective that values human relationships and mutual connections
over individual autonomy75 and takes into account both thinking and feeling.76
The ethic of care regards detachment as a moral problem.77 Yet, this is the
key challenge in our existing legal structures and institutions which promotes
detachment with the client, opposing parties/counsel as an important aspect of
lawyering. Lawyers are trained to ignore their personal feelings about their cli-
ents and their causes and devote their attention towards achieving success for
the client irrespective of how their client’s rights might affect others.78
Is it possible for legal actors (lawyers, judges, clients, law students, law
professors) to acknowledge the centrality of care and if yes, how and with what
consequences will they employ it?79 Gilligan’s contribution is of significant
value in the field of legal and moral theory as she has attempted to deconstruct
the modern legal subject- rational, abstract, autonomous Man80 by articulating
a plural, non-hierarchical and relational subject.81
Care cannot be legislated and must emerge from voluntary, internal

sources.82 However, what can and should be confronted and changed is a legal
culture that fosters selfish, profit maximising behaviour that minimises sensi-
tivity towards others83, and a legal system that allows legal actors to wage war
and act in ways, which although ordinarily reprehensible, have become morally
defensible in legal practice.84 Examining the institution of legal representation
75
Stephen Ellman, supra note 5, at 2668.
76
See Carol Gilligan, Reply by Carol Gilligan, 11 Signs 326 (1984).
77
Carol Gilligan, supra note 74.
78
Sandra Janoff, supra note 48, at 228-29.
79
Carrie Menkel-Meadow, supra note 65.
80
Susan Hekman, Moral Voices, Moral Selves: Carol Gilligan And Feminist Moral
Theory 2 (1995). See generally Grace Clement, Care, Autonomy And Justice: Feminism
And The Ethic Of Care (1993).
81
Narnia Bohler-Muller, supra note 72, at 50.
82
Carrie Menkel-Meadow, supra note 65, at 401.
83
Id.
84
Carrie Menkel-Meadow, supra note 65, at 407.
in care terms will show that lawyers who believe in the centrality of care in
defining their professional responsibility will care for all parties involved in a
legal situation.85 In Gilligan’s words, ‘an ethic of care rests on the premise of
non-violence- that no one should be hurt’.86
Care in lawyering allows legal actors to make ethical choices based on

‘macro’ considerations such as what cases to take on or which clients to rep-
resent rather than on ‘micro’ considerations such as what to do in a particular
case.87 Care thinking reconstructs the lawyer-client relationship as horizontal
rather than vertical wherein the lawyer makes an independent and objective
assessment of his client’s problem to counsel him. If a lawyer’s individual val-
ues and ethical judgment conflict with a client’s interests, he should be able to
advise the client to find other representation.88
This also means that the lawyer-client relationship is based on empa-

thetic considerations placing greater emphasis on the client’s needs.89 Care for
the other will encourage lawyers to rethink some of the harmful, adversar-
ial techniques used in litigation and/or strive to find the best solution for all
involved parties.90
Menkel-Meadow has proposed ways in which the ethic of care could

inform legal procedures and institutions by focusing on solutions that respond
to the needs of all parties involved and cause the least harm.91 Ellman has
observed that the ethic of care does not necessarily imply that a caring law-
yer-client relationship is always equal, as typically, the client receives more
care and attention from the lawyer than the lawyer from the client and such
inequality should be acknowledged while rejecting an inflexible, hierarchical
lawyer-client relationship that currently exists.92 Neither is such a caring rela-
tionship free of paternalism in certain circumstances given the lawyer’s depth
of knowledge of the client and his/her attachment/connection to the client’s
needs.93
85
86
Carol Gilligan, supra note 71, at 174.
87
Carrie Menkel-Meadow, supra note 65.
88
For a more detailed discussion on this, see E. Wayne Thode, The Ethical Standard For the
Advocate, 39 Texas L. Rev. 575 (1961).
89
Carrie Menkel-Meadow, supra note 65, at.
90
Carrie Menkel-Meadow, supra note 65, at 411-12.
91
See Carrie Menkel-Meadow, Portia in a different voice: Speculations on women’s lawyering pro-
cess, 1 Berkly. Women’s L.J. 39 (1985), available at http://scholarship.law.berkeley.edu/cgi/
viewcontent.cgi?article=1001&context=bglj.
92
93
Stephen Ellman, supra note 5, at 2704 (Ellman argues that caring lawyers may make paternal-
istic interventions if there is a demonstrated need for action based on his/her deep knowledge
of the client’s situation, such as in the case of a victim of domestic violence who is unable
to take action against her partner/spouse and allows him/her to move back into the family
home. If a caring lawyer is convinced that his/her client will face harm as a result of her
The ethic of care encourages lawyers to establish a personal relationship

and/or emotional connection with his/her client to understand the client’s
perspective and represent the client as a person and not a cause94 in order to
provide better services to the client and care better.95At the same time, even
while developing a meaningful connection with clients, a caring lawyer should
maintain professional distance from them. It is a delicate balance between a
level of self-disclosure that will assist the clients rather than flood them with
self-revelation.96 As O’Leary describes, ‘sharing personal experiences can lead
to dependence that could be dangerous. The lawyer might be so eager to share
her own experiences that she imposes on the client’.97
With regard to legal representation and choice of clients, the universalist

idea that a lawyer must represent any person who approaches him/her is deeply
problematic in care terms.98 In other words, while the ethic of care extends
care to everyone, it is implausible to render equal care for all.99 Our personal
beliefs and values guide many of our professional decisions in our lives, yet,
oddly, the ethics of lawyers is defined and understood as incompatible with
personal morality.
Ellman illustrates this aspect as follows-100
“As an empirical matter, there simply is room- people in professional

contexts do respond to the calls of affection, loyalty, and sympathy. As
a normative matter, moreover, there should be room- at least as long
as we believe that justice should be tempered with mercy, and the rig-
ors of the law eased with equity”.
Many might question the notion that lawyers should have such freedom
of choice of clients as this will allow lawyers to reject cases by always prior-
itising their own interests over others. Charles Fried advocates that a lawyer’s
personal autonomy justifies his/her selection of any client that he/she wishes
for any reason, as long as he/she can faithfully represent the client within the
choices if he does not intervene, he would rather make a paternalistic intervention rather than
remain silent and be indifferent).
94
95
96
Kimberley E. O’Leary, Creating Partnerships: Using Feminist Techniques to Enhance the
Attorney-Client Relationships, 16 Legal Study F. 217, 217 (1992).
97
Kimberley E. O’Leary, Creating Partnerships: Using Feminist Techniques to Enhance the
Attorney-Client Relationships, 16 Legal Study F. 217, 217 (1992).
98
Nel Noddings, Caring: A Feminine Approach To Ethics And Moral Education 47,
86, 112 (1982) (Unlike Gilligan, Noddings rejects the possibility of caring for everyone and
argues that the caring person will ‘dread’ the arrival of the stranger needing her care, because
true care is very demanding for the person caring and the notion of equal care for all is
implausible).
99
100
limits of the law.101 William Simon, on the other hand, asks lawyers to exercise
their ethical discretion by taking up those cases that ‘seem most likely to pro-
mote justice’.102
In contrast, the ethic of care emphasises that a lawyer should balance

his/her own interests, needs and responsibilities with that of others to decide
whether to represent a client or not. Multiple factors guide a caring lawyer’s
decision with regard to legal representation, such as client’s needs, lawyer’s own
feelings, and the caring and uncaring nature of the client and his cause. In
fact, in care terms, a lawyer is likely to harm the clients if he/she does not care
for the client and still chooses to represent them when they may have benefited
from effective alternative counsel.
V. How C aring is the L egal P rofession in I ndia ?
The legal profession, as a learned profession, is distinguished from ‘occu-

pations’ or ‘businesses’, through its orientation towards the pursuit of social
goals such as creation and sustenance of conditions of justice.103 No formal
controls were imposed on legal professionals as it was commonly believed
that lawyers, being gentlemen and men of honour, ‘instinctively knew how to
behave’.104 It is assumed that as learned professionals, lawyers are in a position
to articulate a self-regulatory code of ethics and enforce integrity and discipline
into the Indian legal profession.105
The legal profession in India is regulated by the Bar Council of India

(BCI) which performs oversight functions and lays down standards of profes-
sional conduct. Each state has its own Bar Council which regulates admission
and removal of advocates from its rolls. The members of the legal profession in
India are bound by the Code of Professional Ethics in Part VI, Chapter II of
the BCI Rules under Section 49 of the Advocates Act 1961. The powers of dis-
ciplinary action are vested in the state Bar Councils through a system of peer
group adjudication.106
While some critics argue that such a self-regulatory code of ethics

attempt to portray lawyers as honourable and ethical who are somehow worthy
of an exalted professional status and rich financial rewards and also as a way
to minimise state scrutiny and public hostility, others view the code as a social
101
See, Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client
Relations, 85 Yale L.J. 1060 (1976).
102
See, William H. Simon, Ethical Discretion in Lawyering, 101(6) Harv. L. Rev. 1083 (1988).
103
Upendra Baxi, The Pathology of the Indian Legal Professions, 13(3, 4) Ind. Bar Rev. 455 (1986).
104
Donald Nicolson, supra note 10, at 604.
105
Upendra Baxi, supra note 103, at 480.
106
Id.
contract wherein lawyers agree to uphold certain ethical standards in return

for their high social and professional standing.107
The BCI Rules framed under the Advocates Act 1961 prohibits advocates
from refusing client representation108 and encourages them to represent their
clients irrespective of moral considerations. Yet, in practice, we find that advo-
cates exercise absolute discretion in refusing clients as the existing code does
not provide any guidance on how to exercise this discretion.
Furthermore, the rules de-emphasise care thinking as follows109 –
“It shall be the duty of an advocate fearlessly to uphold the interests

of his client by all fair and honourable means without regard to any
unpleasant consequences to himself or any other. He shall defend a
person accused of a crime regardless of his personal opinion as to the
guilt of the accused, bearing in mind that his loyalty is to the law
which requires that no man should be convicted without adequate
evidence”.
The rules also allow lawyers to maintain a close nexus with the econ-
omy. Although they cannot engage in business, the rules permit them to serve
as ‘sleeping partners’, directors of companies, inheritors of family businesses,
investors and lobbyists110 to supplement their earnings. In addition, there is no
regulation of legal fees charged by lawyers.
As Upendra Baxi describes,111
“In simple words, adequate care has been taken by the Code to
authorise the recovery of fees, however negotiated, either from the
expense account or from the judgment award....Although the tariff for
legal fees is set by the rules of the Court, the Code nowhere places an
obligation on lawyers not to charge higher fees”.
The practice of engaging lawyers on a retainer by large companies

is as much for their legal services as it is for preventing their availability to
the opposite parties.112 Specialised legal skills are frozen through an artificial
107
108
Part VI, Chapter II, Standards of Professional Conduct and Etiquette, Bar Council of
India Rules (under The Advocates Act 1961), http://www.barcouncilofindia.org/wp-content/
uploads/2010/05/BCIRulesPartVonwards.pdf.
109
Part VI, Chapter II, Standards of Professional Conduct and Etiquette, Bar Council of
India Rules (under The Advocates Act 1961), http://www.barcouncilofindia.org/wp-content/
uploads/2010/05/BCIRulesPartVonwards.pdf. (S. II, Duty to the Client).
110
111
112
Upendra Baxi, supra note 103.
restriction on the market for legal services. The existing dichotomy between
prohibition of solicitation or advertising by lawyers, on one hand and the
wholesale buying of legal services, at unregulated legal fees113 on the other,
invariably benefits the prominent lawyers and the resourceful clients,114 thus,
promoting unfair competition and creating an unequal Bar.
Yet, to a limited extent, the current rules that regulate the legal profes-
sion in India seem to be informed by care considerations. The conflict of inter-
est rules prevents a lawyer from appearing in a case in which he is a witness
and obligates a lawyer to fully disclose to his client, at the time of engagement,
all information relating to his connection with the parties and/or any interests
which is likely to affect the client’s decision in engaging him.115
Care thinking is reflected more clearly in the principle -116
“An advocate appearing for the prosecution of a criminal trial shall so

conduct the prosecution that it does not lead to conviction of the inno-
cent. The suppression of material capable of establishment the inno-
cence of the accused shall be scrupulously avoided”.
However, the rules do not recognise the heterogeneity of the legal pro-
fession. For example, a lawyer owes a duty to the court to restrain himself
and his client from engaging in unfair practices, including use of inappro-
priate language and aggressive tactics and arguments, in relation to the court
and opposing parties and counsels and should refuse to represent a client who
engages in such improper conduct.117 The rules also stipulate that a lawyer
should not be a mere mouthpiece for the client. However, in reality, some law-
yers, particularly law officers in government service, are rarely in a position to
question the means adopted by their client-the government, and in fact, have
to justify the actions of the government, no matter how ‘unfair’,118 in court
and in public.
The cornerstone of a good justice system is the right of all persons, irre-
spective or their socio-economic status to full and effective legal representation.
Yet, two standards of justice for the haves and the have-nots, continues and
those most in need of legal assistance must overcome great barriers to obtain
it. Quality legal representation is an expensive commodity in the legal market
and the poor ‘are not able to choose the lawyer, nor the lawyer to choose the
113
Upendra Baxi, supra note 103.
114
Upendra Baxi, supra note 103 (The Code does not differentiate between different types of cli-
ents. The capacity and resources available to government, corporations, banks, financial insti-
tutions, registered societies, etc. vary greatly from that of an individual client).
115
Supra note 108. (S. II, Duty to the client, BCI Rules).
116
Supra note 108.
117
Supra note 108.
118
poor’.119 The quality of legal representation available for the poor reflects their
value within our legal system and whether they are seen as worthy of receiving
the same quality of legal counsel as the wealthy.120
The 42nd Constitutional Amendment in India added Article 39-A which

obligates the State to ‘provide free legal aid, by suitable legislation or schemes
or in any other way, to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disability’. In 1987, the
Legal Services Authorities Act was enacted which led to the establishment of
national, state and district level Legal Services Authorities along with Legal
Services Committees at the Supreme Court, High Court and Talukas. Since
then, legal aid schemes have been rolled out through Lok Adalats, paralegal
volunteers, legal aid clinics etc.
The development of social action litigation (SAL) during the 1980s

which used judicial power to protect marginalised and powerless individuals
and groups was yet another step towards securing access to justice for the poor.
Galanter and Krishnan have argued that while SAL was successful in rais-
ing awareness, strengthening citizen action, improving government account-
ability and enhancing the legitimacy of the judiciary, it has failed to ensure
the systematic implementation of human rights norms that it has so proudly
upheld.121
A World Bank study has also shown that SAL has not benefited the poor
and other marginalised individuals and groups. The failure of SAL to realise
its original objectives has manifested itself in two ways- beneficiary inequality,
i.e. the middle class with greater organisational and financial resources than
the poor have gained better access to the courts and reaped benefits of SAL
and policy area inequality, i.e., the judiciary comprising of judges representing a
certain social class and ideological disposition, have been more sympathetic to
the cause of the middle class and the wealthy, as witnessed in rulings involv-
ing WTO accession, Union Carbide’s liability in the Bhopal gas leak case and
the construction of the Narmada Dam.122 The analysis of SALs in this study
brings forth real concerns about ‘equality’ of access to justice.
119
Kaleeswaram Raj, Fair Advocacy as a Right, The Hindu, (March 27, 2014), http://www.the-
hindu.com/opinion/lead/fair-advocacy-as-a-right/article5836221.ece.
120
Michelle S. Jacobs, Full Legal Representation for the Poor: The Clash Between Lawyer Values
and Client Worthiness, 44 Howard L.J. 257, 258 (2001), available at http://scholarship.law.ufl.
edu/cgi/viewcontent.cgi?article=1147&context=facultypub.
121
Marc Galanter & Jayanth K. Krishnan, “Bread for the Poor”: Access to Justice and Rights of the
Needy in India, 55 Hastings L.J. 789, 796-97 (2003-2004).
122
Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving?, World
Bank, Policy Research Working Paper 5109, 8 (Nov. 2009), available at http://elibrary.
worldbank.org/doi/pdf/10.1596/1813-9450-5109.
If indeed lawyers have a duty to render legal aid, then why do the most
successful and affluent lawyers routinely refuse to take up cases of poor per-
sons in need of legal assistance?123 Senior advocates routinely charge exorbitant
fees under different heads like retainer fee, settlement of brief charges, con-
ference charges, appearance charges, reading fees, opinion/consultation fees
etc.124 Galanter and Robinson, in a recent study, observed that elite litigators
or ‘Grand Advocates’ of India charged 500,000-600,000 INR per appearance
($10,000-12,000) at the Supreme Court.125
These advocates take up public interest or pro bono cases sometimes to

elevate their public profile before the bar and the bench. The pro bono work
can assist in enhancing their reputation and visibility as lawyers who support
causes they care about. However, lawyers may be overlooked for the designa-
tion of ‘senior advocate’ by the Supreme Court or High Court or if they are
perceived as being ‘too far outside the mainstream’ by frequent engagement
with pro bono work.126 Interestingly, the Advocates Act does not prescribe ay
ethical parameters for designation as senior advocate.127 In fact, in some States,
the income tax details of lawyers are requested which is based on the mis-
placed notion that a lawyer’s ability is somehow linked to his/her income.128
To uphold the best interest of the litigants and ensure uniformity of the Bar,
restrictions should be imposed on levying of such high and unfair fees by
advocates.
A needs assessment study conducted of legal services authorities in seven

Indian states by MARG,129 a leading legal empowerment NGO found that
all states have a panel of legal aid lawyers who are selected on the basis of
their experience. However, they do not receive regular and adequate training.
The cases are left entirely to the empanelled lawyers and there is no system
to monitor case progress. There is no performance appraisal of the lawyer and
no institutional follow up with the client. Lawyers are underpaid and receive
a fee as low as Rs 500 per case. Similar patterns were noted with paralegals
who receive little or no training, do not have a clear understanding about their
123
124
Kaleeswaram Raj, supra note 119.
125
Marc Galanter & Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in the Era
of Globalisation, 5 Harvard Law School Program on the Legal Profession Research
Paper Series 2013 11, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2348699.
126
Id.
127
S. 16(1) of the Advocates Act. (It provides, ‘An advocate may, with his consent, be designated
as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his
ability [standing at the Bar or special knowledge or experience in law] he is deserving of such
distinction.’).
128
Kaleeswaram Raj, supra note 119.
129
For details, See, Marg, Needs Assessment Study of the Legal Services Authorities in the States
of Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odisha, Rajasthan and Chhatisgarh,
Department of Justice. Government of India and UNDP (2012), http://www.in.undp.org/con-
tent/dam/india/docs/DG/needs-assessment-study-of-selected-legal-services-authorities.pdf.
roles and do not receive adequate remuneration. The National Legal Services
Authority (Free and Competent Legal Services) Regulations 2010 which lays
out the procedures and criteria for selection of panel lawyers, establishment of
monitoring committees are not yet fully functional in the assessed states.130
This shows that the poor are not entitled to either zealous131 or adequate132 legal
representation.133 The MARG study made certain recommendations to address
the gaps in the existing legal aid system such as development of a transparent
and systematic empanelment process for lawyers, monitoring and evaluation
through case tracking and client feedback, training of empanelled lawyers and
regular payment of lawyers’ fees.134
In another recent study of access to justice in the lower judiciary in

India, it was observed that lower-tier judges should be empowered to play a
much wider role than simply delivering judicial opinions based on narrow, for-
mal procedural rules as they are trained to do.135 For example, a lower court
judge released a rape accused on bail on the ground that he shall marry the
girl. In this case, the judge missed a real opportunity to protect the girl’s
rights by not arresting the accused and not conducting a fair trial. Instead, he
endorsed a marital union between a rape accused and his victim and perpetu-
ated a culture of discrimination and sexual abuse.136 With more judicial train-
ing and sensitisation and increase in judges’ salaries, more talented, motivated
and sensitive people from the bar could be attracted to join the judiciary.137
This apathy towards the poor seeking justice is closely linked to the kind
of training that is imparted in law schools. Most students do not learn how
to appreciate or value their clients during their legal training.138 At the same
time, lawyers who represent the poor are not always respected by the bar and
130
Id., at 125
131
Lawyers have a strict ethical responsibility to advocate zealously on behalf of their client.
Zealous representation does not mean a lawyer should strive to “win” a case at all costs,
if that means harming third parties and adversaries unnecessarily in the process. It means
doing everything reasonable to help a client achieve the goals set forth at the outset of the
representation.
132
Indigent defendants who are represented by appointed lawyers are entitled to adequate rep-
resentation. But “adequate representation” does not mean perfect representation. Adequate
representation not only covers the right to have a lawyer present at a trial in a court of law
but also that the lawyer is competent in arguing cases in a court of law.
133
Stephen B. Bright, Legal Representation for the Poor: Can Society Afford This
Much Injustice, 75 Miss. L. Rev. 710 (2010), available at http://scholarship.law.
m i s s ou r i.e du /c g i /v ie wc ontent .c g i?a r t ic le =3883& c onte x t=m l r& s ei-re d i r=1& re f er-
er=http%3 A%2F%2Fscholar.google.co.in%2Fscholar%3Fhl%3Den%26q%3Dright%2B -
poor%2Blegal%2Brepresentation%26btnG%3D#search=%22right%20poor%20legal%20
representation%22.
134
See supra note 129, at 137-140.
135
Jayanth K. Krishnan supra note 26, at 534.
136
Jayanth K. Krishnan supra note 26.
137
Jayanth K. Krishnan supra note 26.
138
Michelle S. Jacobs, supra note 120, at 274.
the bench and are made to feel less professional. They may be perceived as
‘low-status’ or incompetent lawyers who cannot get better jobs.139 High case-
loads and poor salaries further alienate lawyers representing the poor which
adversely impacts the quality of legal representation. In addition, courts are
often seen as prioritising procedural and administrative concerns over deliver-
ing justice. Moving dockets trump competent legal representation in many cas-
es.140 Given this reality, it is reassuring to learn that the National Law School
of India University (NLSIU) is submitting a draft policy to the BCI and the
Law Ministry that makes it mandatory for all law schools to establish free
legal aid clinics to be run by law students.141
Many notorious practices of the Bar are overlooked by the rules, such
as bench-fixing,142 suppression of unfavourable legal precedent, asking for
repeated adjournments, charging disproportionately high fees without any
regard for the capacity of the client to pay and the nature of the case, encour-
agement of administrative corruption among court staff.143
The Code is couched in mandatory terms although it does not seem to

create any binding obligations and is meant to serve as a ‘general guide’ for
legal practitioners.144 Despite the notional accommodation of care thinking in
the existing rules and standards of professional conduct of lawyers in India,
we witness blatant disregard for the rules by legal practitioners, mainly due to
the lack of a strong accountability framework to initiate disciplinary action in
cases of professional misconduct.
Upendra Baxi identified four kinds of professional deviance by lawyers-

client-centred deviance, which is the most common, abuse of judicial process,
disrespect to the court and/or other judicial authorities, and conviction for
criminal offences.145 He examined some disciplinary rulings of the BCI com-
mittee between 1972 and 1978 and offered some interesting observations that,
in his opinion, constitute the ‘pathology of the legal profession’.
He found that very few of these were suo motu proceedings by the
BCI.146 The BCI sparingly uses its powers under Section 35(3) of the Advocates
Act 1961 to reprimand, suspend or remove an advocate from its rolls as
139
Michelle S. Jacobs, supra note 120, at 274.
140
Stephen B. Bright, supra note 133, at 709.
141
Venkata Sushmita Biswas, When your lawyer is a collegian, The Hindu, September 17, 2013,
http://www.thehindu.com/todays-paper/tp-national/tp-karnataka/when-your-lawyer-is-a-colle-
gian/article5136405.ece.
142
Some lawyers may use unfair means to ensure that particular judges sit in particular trials to
influence the ruling in their favour.
143
Upendra Baxi, supra note 103, at 461-62.
144
145
146
Suo motu proceedings by State Bar Councils are discretionary. (S. 35 of the Advocates Act)
punishment for professional misconduct. The BCI disciplinary committees

were found to protect deviant advocates from adverse publicity147 and strong
sanction by reducing punishment in almost all cases, upon appeal. The study
also observed that the disciplinary proceedings of the BCI did not follow a tra-
dition of continuity and operated without any normative standards or a body
of precedents and there was no urgency in deciding on disciplinary proceed-
ings and on average, the committees took between two to three years to decide
a case.148
While the lawyer is able to afford legal representation in such proceed-

ings, the complainant remains unrepresented in a majority of cases.149 In terms
of sanctions, Section 42(5) of the Advocates Act allows the Chairperson or
Vice-Chairperson of the State Bar Council to decide a matter when the dis-
ciplinary committee fails to reach a clear majority opinion thus promot-
ing majoritarianism and interventions by non-members of the disciplinary
committee.150
Those few State lawyers who are dismissed or removed from office on
charges of moral turpitude are allowed to be re-admitted into the Bar after
the expiry of two years since such dismissal or removal.151 Despite the Law
Commission of India’s recommendation that this legal proviso be removed so
that such lawyers remain disqualified for life and that such disqualification
be extended to private legal practitioners, this provision continues to be in
effect.152
The existing code of ethics regulating the legal profession in India are,
on one hand, aspirational in the sense that they set high standards which are
often not reinforced through appropriate disciplinary sanctions153 and discipli-
nary, on the other, as they also attempt to lay down a set of categorical, all-or-
nothing rules, often without reference to context or consequences.154 Whether
aspirational or disciplinary or both, the important question is whether the code
has deterred unethical and unprofessional behaviour and encouraged behav-
iour that is ethical.155 Unfortunately, the BCI, as the sole custodian of the legal
147
The disciplinary proceedings of the Bar Councils are in camera.
148
Upendra Baxi, supra note 103, at 478-79.
149
Although there is a provision for amicus curiae lawyers for unrepresented complainants in dis-
ciplinary proceedings of Bar Councils, Baxi’s study found that this provision was rarely used.
150
See, Upendra Baxi, supra note 103, at 480-82.
151
S. 24-A(1) of the Advocates Act 1961, http://www.barcouncilofindia.org/wp-content/
uploads/2010/05/Advocates-Act1961.pdf (last visited on October 10, 2013).
152
Law Commission of India, The Legal Education & Professional Training and Proposals for
Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, 184th
Report, (Dec. 2002) 122-24, http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf.
153
154
Donald Nicolson, supra note 10.
155
profession in India, has proved incapable of enforcing ethical standards in a

proactive manner.156
Efforts to enforce the standards of professional conduct by the proposed

establishment of the Legal Services Board through the enactment of the Legal
Practitioners (Regulations and Maintenance of Standards in Profession, Protecting
the Interest of Clients and Promoting the Rule of Law) Bill 2010, are pending.157
The proposed law aims to create a Legal Services Board to regulate the legal
profession; establish an ombudsman to deal with complaints against legal
practitioners and enact the duty to provide pro bono legal services. The Bill is
being opposed by large sections of the legal fraternity as they argue that such a
‘super-regulator’ would undermine the authority of the Bar Councils and inter-
fere with the independence of the Bar. Instead, they have proposed that Bar
Councils be strengthened and made more accountable.
VI. C onclusion
The structure and practice milieu of legal practice in India has been rad-
ically altered in the last decade or so. In this context, the legal academy and
the Bar must attempt to develop new approaches to teaching, learning and
practicing professional responsibility which will require a counter-socialisation of
sorts that prioritises social context, moral reasoning, care and connection, intu-
ition and motivation.158
The system of peer group adjudication by the BCI has proved to be

ineffective and has failed to enforce the standards of professional conduct for
lawyers. Over the years, the BCI has served to protect the interests of advo-
cates and has not upheld the integrity of the legal profession, as was originally
intended.
The adherence of existing codes of professional ethics to a set of neutral

rules may lead to indifference towards ethical considerations and reduce eth-
ics to risk analysis and management instead of development of moral charac-
ter and ethical behaviour.159 Instead, a caring, contextual code will address the
ethical issues involved in client selection and provide guidance on how these
issues will play out in that particular situation.160 It will expose law students
156
157
Text of the Bill, available at lawmin.nic.in/la/NALSA.doc.
158
Barbara Bezdek, Reconstructing a Pedagogy of Responsibility, 43 Hastings L.J. 1159, 1160
(1991-92).
159
Donald Nicolson, Making Lawyers Moral? Ethical Codes and Moral Character, 25(4) Legal
Stud. 601, 619 (2005).
160
See generally Donald Nicolson & Julian Webb, Professional Legal Ethics: Critical
Interrogations Chapters 6-8 (1999).
to the ethical dilemmas and constraints that arise in various practice areas and
help them in making ethically informed career choices.161
In the changing world of legal practice, care thinking may positively

impact the nature of legal representation and significantly reform the law-
yer-client relationship.162 The ethic of care offers interesting alternatives to cur-
rent lawyering models by seeking to temper the lawyer’s zeal while preserving
the core ideal of a lawyer’s role as his/her client’s advocate163 but care thinking
risks devaluation if it does not run as a thread within the law school curricu-
lum and remains limited to a few isolated courses.164
However, we must remain mindful about placing the burden of care dis-
proportionately on certain groups of lawyers, for example, women, or blurring
the thin line between care and charity165 when paternalism trumps empathy.
Concerns about legal relativism in the existing legal arena of stable, universal
and predictable rules must also be addressed. Despite this, care and relational
theories hold the power to transform legal discipline and institutions and mer-
its serious consideration from the legal profession in India.
161
Donald Nicolson, Making Lawyers Moral? Ethical Codes and Moral Character, 25(4) Legal
Stud. 601, 623-24 (2005).
162
163
164
165
Theresa Glennon, supra note 51, at 414-15.

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UNIT II - SIGNIFICANCE AND CAPACITY BUILDING

Fordham Law School

Teaching Ethics Seriously: Legal Ethics as the Most

Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship

5. ABA Comm. on Professionalism, In the Spirit of Public Service: A Blueprintfor

class course, and pervasive teaching of ethics in all classes."

II. THE BETRAYAL OF PROFESSIONAL RHETORIC: PROFESSIONAL

A. A Rhetoric of Ethical Commitment

1 1. See infra Part IV.

B. Academic Disregardfor Legal Ethics

III. WHY ACADEMICS WRONGFULLY DISDAIN LEGAL ETHICS

including a one credit required course as well as more challenging options).

of three powerfully entrenched perspectives: (1) a faith in the ethical

49. See infra notes 51-57 and accompanying text.

Unfortunately, evidence today strongly suggests that neither the

raw materials from which to distill the principles of law.' He believed

Although these critiques persist, the ideological perspectives from

77. See Cramton & Koniak, supra note 27, at 159.

proposition that "contempt" for ethics is necessary in order for "law

85. COHEN, supra note 65, at 19.

development. 95 Not surprisingly, studies reveal that moral

IV. TEACHING ETHICS SERIOUSLY

encounter in practice, regardless of their specialty. It establishes the

purpose. While three credits is not sufficient to provide mastery,"10 it

In light of the declining standards and public trust and confidence

The dominant understanding of legal ethics is constructed in terms of

II. Taking P rofessional Ethics Seriously

The negative public perception of legal practitioners is reflected in the

Such erosion of values begins much before a lawyer enters profes-

The moral neutrality of the legal profession in the face of commerciali-

It has been observed that lawyers’ moral reasoning and decision-making

It is no surprise, therefore, that more than 90 per cent of Supreme

questions such as harmonisation of duties as a lawyer and officer of the court;

Intense competition among lawyers in a tight market for legal services

A recent empirical evaluation of civil litigation in India by Eisenberg,

in recent years despite an overall improvement of human well-being in India.

III. Bridging the G ap between L egal Ethics and the

Traditional legal education approaches the subject of law within the

Marc Galanter identified the malaise of Indian legal education as

“The emphasis on litigation and the barrister’s role reinforces lawyers’

education. Writing and teaching are, with significant exceptions, con-

Traditionally, the teaching of professional ethics and responsibility in

While it is important to learn the Code of Ethics, an understanding of

However, there are a few positive examples, developed by some pro-

The Legal Theory and Practice (LTP) course in the University of

In a similar vein, the ‘humanising legal education’ movement that

A convergence of these ‘vectors’, comprising of a number of new disci-

These innovative pedagogical models provide a basis for law schools in

IV. The Ethic of C are as a P rofessional

The present structure of legal education divorces the intellectual side of a

As John J. Flynn observes,67

“Law schools may actually be creating amoral lawyers, whose skills of

In 1982, Carol Gilligan proposed the feminist ethic of care as a norma-

Kohlberg reached his conclusions using male subjects as he observed that

Gilligan beautifully explains the interdependence of justice and care as

In Gilligan’s view, care is not just an emotional response but a coher-

Care cannot be legislated and must emerge from voluntary, internal

Care in lawyering allows legal actors to make ethical choices based on

This also means that the lawyer-client relationship is based on empa-

Menkel-Meadow has proposed ways in which the ethic of care could

The ethic of care encourages lawyers to establish a personal relationship

With regard to legal representation and choice of clients, the universalist

Ellman illustrates this aspect as follows-100