By Deborah L. Rhode

Mark Twain once observed that ?To do right is noble. To advise others to do right is also noble and much less trouble to yourself.? This partly explains the distance between the values that the legal profession exalts in principle and rewards in practice. Legal educators are no exception. Our official rhetoric celebrates professional ethics and public service. Our curricular priorities marginalize both. Except on ceremonial occasions, we are uncomfortable talking about values. The result is that we too often substitute unimportant questions we can answer for important ones we cannot.

Columns like this are an occasion for deeper reflection about the professional responsibilities of professional schools. My focus here is the unstated values of our educational culture. This is, I realize, a topic that most of us approach warily, either as authors or audiences. And with good reason. The subject invites the kind of pompous platitudes well captured in a New Yorker cartoon, where a monk striding through cloisters assures his companions that ?I am too holier than thou.?

I come to the subject of values with more humility but no less conviction. The point of this column is to raise concerns on two levels. The first involves how we teach, or fail to teach, course material on professional ethics. The second involves the ethical values that we implicitly reinforce, or fail to reinforce, throughout the law school culture.

Legal Ethics Without the Ethics

For most of this century, legal ethics as a substantive field rarely rose above what an early scholar described as ?general piffle.? Although the last two decades have witnessed dramatic improvements, our progress has been uneven and incomplete. Most schools relegate the subject to a single required course, typically two units, which principally addresses bar regulatory codes. The result is what William Simon labels ?legal ethics without the ethics.? Students learn what disciplinary rules require but lack the foundations for critical analysis.

The inadequacy of this approach is of particular concern in bar regulatory contexts where rules are ambiguous or self-serving. Moreover, an excessively doctrinal framework leaves out many of the crucial issues facing the American legal profession: inadequate access to justice for low- and moderate-income citizens; disciplinary processes that provide no effective remedies for most complainants; excessively adversarial norms that escalate costs for parties and devalue the interests of non-parties; practice structures that leave half of surveyed attorneys dissatisfied with their professional lives. In the American Bar Association?s mid-l990s study, less than a fifth of lawyers felt that legal practice had met their expectations in contributing to the social good.

Professional Ethics and Curricular Priorities

Neither these issues, nor other common ethical dilemmas, receive significant attention outside of professional responsibility courses. Few schools make systematic efforts to integrate legal ethics into the core first year or upper level curricula. The coverage that does occur is often superficial or ad hoc, with no assigned reading and no questions on exams. Most students get too little theory and too little practice; classroom discussions are too far removed from real life contexts and too uninformed by insights from allied disciplines such as philosophy, sociology and economics. This minimalist approach to legal ethics marginalizes its significance. Educational priorities are apparent in subtexts as well as texts. What the core curricula leaves unsaid sends a powerful message that no single required course can counteract.

Our failure to make professional responsibility a professional priority has multiple causes, but faculty convenience is surely one of them. For nonexperts in ethics, a little knowledge feels like a dangerous thing and acquiring more is a time-consuming enterprise. Developing good teaching materials can also be difficult since casebooks outside the field of professional responsibility rarely provide significant coverage.

These difficulties are, however, less imposing than faculty often assume. An increasing array of curricular integration materials are available, including videos, simulation exercises, and a paperback text of cases, readings, and problems. Many of these materials include teachers? manuals and are readily located through an annotated bibliography.* Most faculty could, with minimal effort, effectively present ethics issues related to their specialty. The real problem is that most prefer not to.

Part of that reluctance reflects skepticism about the value of discussing values in professional school. To many faculty, postgraduate ethics instruction promises too little too late. A common assumption is that moral conduct is primarily a matter of moral character. Students either ?have it or they don?t,? and those who don?t are unlikely to be transformed through classroom moralizing.

A related concern is that even if legal education can have some effect on students? attitudes, it will have little impact on their later practice. Moral conduct is highly situational, and critics argue that contextual pressures are likely to dwarf the effects of law school coverage.

Such concerns are not without force, but they suggest reasons to avoid overstating our influence, not to abandon our efforts. Skeptics are, of course, correct that values do not of themselves determine conduct. One particularly sobering study found no significant differences between the moral beliefs of Illinois ministers and prison inmates. Moral conduct reflects multiple capacities: the ability to recognize and analyze moral issues, the motivation to act morally, and the strength to withstand pressure. Not all of these characteristics can be taught in law school.

However, some traits are open to influence. Research on ethics education finds that individuals? moral views and strategies change significantly during early adulthood and that well designed courses can improve capacities for moral reasoning. Moreover, many crucial professional responsibility issues are not matters on which students have strong preexisting convictions. Some concern failures in bar regulatory processes, which students will not have encountered prior to law school. Other ethical issues involve competing values, and professional standards sometimes depart from personal intuitions. Future practitioners need to know where the bar draws the line before they are in positions to cross one. Since some of these individuals eventually will help determine where future lines are drawn, legal education should provide background in the policy considerations at issue.

So too, despite the importance of situational pressures in practice, psychological research generally finds that moral judgment influences moral conduct. Education can affect the way that individuals evaluate the consequences of their decisions and respond to the economic and organizational incentives underlying ethical problems. In fact, most surveyed attorneys believe that the ethics instruction they received in law school has been helpful to them in practice and should be maintained or expanded.

For many faculty, a final obstacle to increased coverage involves the discomfort of venturing into value-laden discussion. Most of us prefer questions we can confidently answer and are wary about either pronouncing or withholding judgment on ethical issues. To announce a position risks turning podiums into pulpits and silencing students with different views. Yet to reserve judgment risks fostering relativism and cynicism. Everyone?s view becomes as good as everyone else?s, and an atmosphere meant to foster tolerance can undermine commitment.

The dilemma is real, but the answer is not to avoid the ethical issues that present it. We cannot be value neutral on matters of value. What we choose to discuss itself conveys a moral message, and silence is a powerful subtext. If we decline to put ethical issues on our agenda, we suggest that professional responsibility is someone else?s responsibility. And we encourage future practitioners to do the same.

The alternative is to seek and encourage toleration without endorsing agnosticism. Although many ethical questions yield no objectively valid answers, not all answers are equally valid; some are more consistent, coherent, and respectful of available evidence. So too, the risks of proselytizing are by no means unique to issues of professional responsibility. Professors can abuse their prerogatives by self-righteous or peremptory pronouncements on any subject. We don?t avoid the difficulty by avoiding ethics. The answer rather is to educate educators.

Educational Culture and Professional Values

To make professional values central in professional education requires a significant institutional commitment. The conventional approach?add ethics and stir?is inadequate to the task. Professional responsibility issues need to be integrated into the core curriculum, not isolated in a few specialized courses, splashy events, or commencement homilies. So too, pro bono service should be treated not simply as a worthwhile philanthropic option, but as a central priority in professional life.

Strategies for institutionalizing these values are not in short supply. Law schools can support curricular integration of ethics issues through task force recommendations, course development stipends, research assistance, release time, and faculty workshops. Professional responsibility topics can be included in orientation programs, writing assignments, skills exercises, moot court competitions, and trial advocacy projects. Coverage can be monitored by reports to the dean and questions on student evaluations.

So too, more resources and recognition could become available for pro bono activities. Legal education can work in tandem with community and bar organizations to develop appropriate projects and reward participation. Showcasing public service through awards, publications, fundraising events, and alumni programs can help create a culture of commitment among faculty and students.

Of course, talk is cheap and effective professionalism initiatives are not. But the price of inaction is also steep, only less quantifiable. On issues of professional responsibility, a wide distance persists between our rhetorical commitments and institutional priorities. Students recognize the gap. We should as well.

* This article appeared in the April 1998 AALS Newsletter