Constructing the Field of Professional Responsibility

Abstract

The role of lawyer is widely understood by law students and practitioners as the entry into a simplified ethical world, one in which ordinary moral principles are cleared away by the hegemony of doctrines unique to the practice of law. This understanding is supported by and may originate in a particular view of lawyers' professional responsibility, a view in which a lawyer's ethical obligations as a professional are defined largely (though not entirely) by specialized legal rules - principally the codes of ethics and other rules that regulate lawyer conduct - and the policies thought to underlie those rules.

There is nothing natural or even intuitive about defining lawyers' ethical obligations primarily in terms of compliance with rules. Indeed, there has long been a debate about whether black letter codifications can possibly serve as an adequate platform for ethical deliberation. But to acknowledge this debate is not to argue that there is some alternative way of thinking about lawyers' professional responsibility that is truly or actually natural. All fields of law must be constructed somehow. What is worth consideration is how a field is constructed in one way rather than another, and the effects of any given construction.

Our thesis embraces two claims. The first claim is that within the traditional law school curriculum, law is constructed as a relatively autonomous discipline distinguished from other disciplines, including philosophical ethics, and that the discipline of law is subdivided into relatively separate fields. Thus, notwithstanding more than a century of developments in legal education and claims of progress in our understanding of law - notwithstanding the academy's apparent absorption of influences ranging from legal realism to critical legal studies to feminist jurisprudence to critical race theory to a host of law and analyses - students continue to be educated into a relatively Langdellian world view. The second claim is that within the traditional law school curriculum, Professional Responsibility is constructed as its own field of law. As a consequence, law students learn to think of law generally, and Professional Responsibility specifically, as disengaged from moral considerations.

Part One of the article takes up the questions how and why the Professional Responsibility field has been traditionally structured in the law school curriculum on a legalistic model, i.e., as but another field of law separated from ordinary moral concerns. In Part Two, we point out that there is nothing about the concept of law that requires its separation from ordinary moral reasoning. We suggest that when law is constructed so as to be saturated with moral considerations, then the professional work of lawyers, and hence their professional responsibilities, can be understood to be similarly saturated. In Part Three, we explore some of what is at stake in our decisions about how to construct Professional Responsibility. We consider both the powerful allure that the traditional construction has for law students and practitioners and the construction's remarkable resiliency in the face of repeated, multidimensional assaults on the legalistic model.

JEL Classification: K40, K49