HAMLINE UNIVERSITY SCHOOL OF LAW

FROM RULES TO ETHICS:

Identity, Responsibility & Integrity in the Legal Profession

Seminar in Ethics CRN 12764(Mondays)/12984(Tuesdays) – Three Credits

Fall 2007

S Y L L A B U S

© 2007 Howard J. Vogel, All Rights Reserved

Monday Sec. (CRN 12764): 9:00 – 10:50 p.m., Room 240A Professor Vogel

Tuesday Sec. (CRN 12984): 9:00-10:50 a.m., Room 240A Room 221W

Office Hours: Mon. & Tue. 11:00 a.m. – Noon Phone: 651-523-2120

e-mail:

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Scope and Purpose: This course will study the values, rules, and professional identity of lawyers in comparison to others working in the traditional professions of medicine, religious occupations and business. A central question in our study will be: "What are you claiming about yourself, your values, and your role, when you say to another person that you are a lawyer?" In addressing this question of professional identity, the course will provide an opportunity for students (a) to develop and defend a constructive statement on their chosen professional identity through extended conversation that relies primarily on metaphor and narrative, rather than rules, as an approach to this task; and (b) to reflect on whether and how their professional responsibility and identity may be viewed as a vocation in the sense of a “calling.”

The focus on professional identity at the heart of this course means that the approach to ethics taken in the seminar is guided by a concern for images of the lawyer and other professions raised by the question: “Who are you in your work as a lawyer?” – rather than simply on the typical narrow question of quandary ethics — “What should you do?” – in addressing the ethical dilemmas that arise in your work. Instead of the typical quandary approach to decision-making, the question of what action to take in specific situations will be considered in the context of our foundational concern for the identity of the actor who takes action, and how that identity shapes and informs action that might be taken. More specifically, class discussion will focus on the role of professionals in conversation about public values and policy, and how professional values, professional rules, and professional identity shape ethical decision-making in concrete situations to be discussed in a series of case study and reflective exercises. Of special concern in the case studies will be study of how the traditional values of loyalty, confidentiality and competence, as set out in the ABA Model Rules of Professional Conduct, as well as other values, may be embodied in professional identity and expressed in the situations under discussion. Our study will also provide an opportunity to examine the meaning of the contemporary “crisis of dissatisfaction” in the legal profession.

The course does not examine codes or the law of professional responsibility in the depth of the regular Professional Responsibility course. Students desiring detailed, in-depth examination of the codes or law of professional responsibility should take the course in Professional Responsibility. The course satisfies both the Professional Responsibility and Seminar requirements of the Law School.

There is no prerequisite for the course.

Classroom Activity: In our meetings we seek to establish and maintain an extended conversation with each other concerning the responsibility and professional identity of members of the profession of law as compared to medicine, clergy, and business. This means that each meeting of the course will be devoted to the effort of fostering a conversation within the classroom around the set of readings and the case study exercise for each week. To say that the primary effort of each session is to foster a conversation may seem odd. Yet, as our very first meetings will demonstrate, the establishment and maintenance of a public conversation concerning the ethical challenges which those in the legal profession can expect to encounter in practice in which the conversation partners actually engage each other in committed argument, rather than simply “giving their opinion,” or “sharing their view” is one of the most difficult tasks in modern American public life. Acquiring skill in doing this, however, is critical for those who lay claim to a “professional life” and intend to work at the heart of our public life as lawyers and citizens. Further details on the character and structure of this conversation are set forth below.

Character of the Conversation: To establish and maintain a disciplined exploratory conversation.

A. Conversation: Engaged with the Other in a shared activity - speaking in one's own voice and listening with an attentiveness and openness to the other in a way that includes a willingness to being changed by what one hears. This involves risking change in one's self and views while remaining committed to the value of this process. This is a collaborative rather than an adversarial process. It departs from the typical law school version of the Socratic model.

B. Exploratory: A journey, not a destination - searching the avenues of inquiry open to us without demanding "answers" that are necessarily "right" or even "plausible", yet open to the emergence of novelty both within the conversation and within ourselves. This involves entering the conversation with an air of expectancy but remaining open to leaving it with continuing doubts.

C. Disciplined: Pursuing purposeful continuity - not simply and casually declaring our views but engaging others in their response to our views. The purpose here is to move the conversation forward, moving from where it has been and toward where it seems to be going, by contributing to the determination of where it goes. We are seeking freedom within discipline in our conversation like a concert pianist who works within the limits of the instrument and the composition and tries to realize them in a new way that speaks to the experience of both the performer and the audience.

KEY ASSUMPTION: The view of the conversation on which we are about to embark is one in which the activity of conversation is viewed as valuable in and of itself - it is how we constitute a community among ourselves. We may come to some settled judgments along the way, some of which are surprising to us in terms of who we have been, but that is not the primary purpose of our activity.

Structure of the Conversation: Three weekly performing roles rotated among members of the seminar will occupy the first twenty minutes of ten of the two-hour class sessions (sessions 4 – 13).

1. Journalist - 5 minutes from typed text (approx. 1 page)

2. Presenter - 10 minutes from typed text (approx. 2 pages)

3. Responder - 5 minutes from typed text (approx. 1 page)

The purpose of performing these roles is to provide (1) disciplined continuity, (2) a record of the conversation from week to week, and (3) experience in drawing the threads of the conversation together in an effort to move it forward by adding to it. Typewritten texts will be prepared by each person performing each role for distribution to other seminar members each week in class. These typewritten texts are due at Administrative Assistant Gloria Strom’s message box located in the Faculty Secretaries office, (Room 210W, Law Center), not later than 8:00 A.M. on the day of class each week to permit duplication prior to scheduled class sessions. (In the alternative you may duplicate the copies needed yourself and bring them to class.)

Presenter: This person describes and critiques, in light of the conversation, a portion of reading assigned for the week. This includes discussion of the reading from the point of view of how it sheds light on the theme of our conversation. This requires a style of reading not unlike what you do as lawyers when you read cases, but it is also somewhat different from that. It is like it because you are reading to see what you can make of the text in light of a problem or set of circumstances. In this case you are trying to see what you can make of it in light of our ongoing conversation. This also involves deciding and disclosing how you stand in relation to the material. It is unlike what lawyers do since you are assessing potential resources for continuing the conversation (remember we view the activity of conversation as valuable in and of itself - it is how we constitute a community among ourselves) rather than for resolving a problem through an argument seeking to persuade a decision maker such as a judge. The presenter has the responsibility for delivering a copy of the presentation to the Responder NOT LATER than 9:00 a.m. Thursday morning of the week for which the Presentation has been prepared. This will enable the Responder to directly engage the Presenter’s work.

Responder: This role is like that of the presenter except that the responder's comments are directed at the reading through a primary focus on what the presenter has said. It is an effort by the responder to engage the presenter in conversation. The Responder’s comments should endeavor to directly engage the Presenter’s work. For this reason the Presenter bears the responsibility of delivering a copy of the presentation to the Responder by 9:00 a.m. Monday morning of the week during which the presentation and response will be made in class.

Journalist: This person reports at the next session on the conversation of the previous session and where it next seems heading. This recapitulates the session, but through the eyes of the Journalist's evaluation. The report should be faithful to what occurred but it is also a creative recapitulation that adds to the conversation. The Journalist may see or hear things that not all of us see or hear.

Each week following the presentations by the Presenter, Responder & Journalist, the members of the class will enter the conversation, focusing first on what the Presenter & Responder have said, in an effort to directly engage their work.

Required Reading Materials: Students are expected to prepare the required reading materials for discussion in advance of the class session for which they are scheduled. Required readings for the course are drawn from seven sources listed below, all of which are available in the law school bookstore. The assigned readings for each of the fourteen weekly meetings of the class may found below in this Syllabus on pages 7-ff. The required reading materials for the course will serve as the common texts for our discussion in the weekly meetings of the course. They should not, however, be viewed as limiting the range of our discussion. Instead they will provide us with a common set of resources and a starting point for our exploration of the central theme and topics of the course.

1. American Bar Association, Model Rules of Professional Conduct, 2004 Edition (ABA 2004) ISBN 1590312848 (pbk) (hereinafter “Model Rules”).

2. Duane L. Cady, Moral Vision: How Everyday Life Shapes Ethical Thinking (Rowan & Littlefield Publishers, Inc. 2005) ISBN 0-7425-4494-X (pbk) (hereinafter “Cady”).

3. William May, The Physician’s Covenant: Images of the Healer in Medical Ethics, Second Edition (Westminster/John Knox Press 2000) ISBN 0664222744 (pbk) (hereinafter May Covenant).

4. William May, Beleaguered Rulers: The Public Obligation of the Professional (Westminster/John Knox Press 2001, 2003) ISBN 066422671X (pbk) (hereinafter “May Rulers).

5. Harper Lee, To Kill a Mockingbird, Reissue Edition (1960, Warner Books 1982) ISBN 0446310786 (pbk) (hereinafter “Lee”).

6. Brian J. Mahan, Forgetting Ourselves on Purpose: Vocation and the Ethics of Ambition (Jossey-Bass 2002) ISBN 0787956333 (hereinafter “Mahan”).

7. Howard J. Vogel, Moral Moments in the Practice of Law: Case Study Exercises on Ethical Challenges in the Life of the Lawyer with Supplemental Readings and Syllabus (Unpublished, Duplicated Copy, 2007 edition) (hereinafter “Supplement”) This volume contains a set of case study exercises along with text and an appendix containing additional readings drawn from other sources, all of which are designed to provide you with an opportunity to reflect on the lawyer’s professional identity and responsibility. The case studies are designed to pose ethical questions which may arise within the life of a lawyer engaged in practice. They will provide an opportunity for us to examine some of the Model Rules of Professional Conduct for the purpose of seeing how the Model Rules do and do not provide guidance in dealing with the ethical questions presented in the case studies. In this way they will be useful to you in reflecting on your own view of the lawyer’s role.

The order of reading assignments for each of the fourteen sessions of the course is set forth in the "Course Outline" at the end of this syllabus.

Supplemental Readings: For a brief survey of themes and issues related to the lawyer’s professional responsibility, see Deborah L. Rhode & Geoffrey C. Hazard, Jr., Professional Responsibility and Regulation (Foundation Press 2002). For further discussion of these issues with extended attention on the ABA Model Rules of Professional Conduct, see three works using familiar review and study aid formats authored by Professor Ronald Rotunda: Ronald D. Rotunda & Michael I. Krauss, Legal Ethics in a Nutshell (West Group 2003) & Ronald D. Rotunda, Professional Responsibility, Sixth Edition-Black Letter Series (West Group 2001); as well as his lengthy commentary and guide to the Model Rules of Professional Conduct, Ronald D. Rotunda, Professional Responsibility: A Student’s Guide (West Group 2002).