"Professor Stokes". I'm teaching a four session course this week entitled "Ethical and Practical Aspects of Estate Planning" in the Graduate Program of Estate Planning at the University of Miami Law School. Back in the early 90s I taught a course called "The Estate Planning Process" in this program, and this is my first time back to the program since then. The students are all graduates of law school who are taking one more year to prepare for the specialty in which I practice. (UM will confer a "Master of Laws" on them.) About a third of the 23 students in the class went right from law school into this program; the rest have been practicing for some period of time, some only a few years, others for over twenty.
Over the last two decades, "ethics" has become a big item in both law school curricula and in the "continuing legal education" (CLE) aspect of the practice of law. There was no ethics course when I went to law school and the topic did not appear in CLE courses during the first decade of my practice. There were, however, "Canons of Ethics" that the state bars published at the time I started practicing, and they had been around for quite a long time. When we were sworn in as lawyers, we pledged to be faithful to the Canons. The bar always had a mechanism for enforcing compliance. Yet it did not seem to be a big item when I began. I think most of the principles that the Canons reflected were thought to be fairly well internalized anyway.
But things began to shake apart as we over indulged baby boomers, the Woodstock, Playboy philosophy, Vietnam generation, moved into the profession. This generation treated the law differently. If something was not expressly forbidden, then it was probably permitted, even required. And even if something were forbidden, could we narrow the scope of its prohibition, could we test the thin ice and not break through, could we get away with it? As a result, the profession felt the need to raise the profile of the Canons, to bulk up enforcement, to inject ethics into law school curricula, and to make ethics courses a required part of CLE.
Now there is an ethics industry in the law profession. There are specialists in the law schools who teach and publish text books; there is a chattering and writing class among the practitioners for which there is a subclass of ethics experts; there is a subspecialty of lawyers who defend other lawyers charged with ethics violations, a subclass of prosecutors employed by the bar to bring those cases; there is a growing body of legal malpractice plaintiff's lawyers who seek to make an ethical violation the basis of liability, and so there are insurance defense lawyers who defend the alleged ethics violator. Thus, there is this course I am teaching.
I am using the materials that the "real" professor employed for this course over the last several years developed. He is one of the specialists and the program flew him in from the University of Washington every year for this particular week. I'm a lot cheaper, so there I am. His materials have a set of 16 hypotheticals, and I am using them as the backbone of the course.
The students are strangely (to me) passive. I talk and talk, ask questions, try to get them to respond, and mostly they sit there. Only last night (the third night) did I start to get some feed back. (My strategy is to make more and more outrageous statements until someone just has to raise his hand and argue with me.) As I listened to the feedback and argued with the students, yes, I see that there is a need for this course.
I have more things to say about this experience, but let me close this lengthy post with one interesting point. Its about one of the "Model Rules of Professional Conduct", which are a set of rules that the ABA publishes as a model for states to adopt as their Canons of Ethics. The rule to which I refer is Rule 4.1, entitled "Truthfulness in Statements to Others." In pertinent part it provides: "In the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person . . . "
In other words, Lawyer, tell the truth.
Wow! Interesting! Novel! Let's study that idea for a week. What does that really mean? How can we use that in our practice to advance our client's cause? What are its limits and exceptions? How can we work that rule to get where we want to go? How can we use that as a lever to move our little piece of the world?