Upping the Ante: Curricular and Bar ExamReform in Professional Responsibility

I. Introduction There is a crisis in the legal profession. Thoughtful observers from the academy have expressed alarm,' as have bar leaders,' and opinion polls regularly reflect little public respect for lawyers.' The possible reasons for this crisis are many, but a broad consensus reflects the need for the profession to bolster ethics and professionalism in all phases of a lawyer's life.' Although, at present, every law school covers Professional Responsibility (PR) in its curriculum and every state in some manner tests PR on its bar exam, it is increasingly apparent that these efforts are insufficient. This Essay argues that more can, and should, be done. Specifically, law schools should devote increased resources to PR in the curriculum, and every jurisdiction should test an applicant's knowledge of the PR law of that jurisdiction on the essay portion of its bar exam. II. A Brief History of the Teaching of Professional Responsibility in Law Schools For most ofthe history of legal education in the United States, law schools did not consider PR a part of the core law school curriculum. In the early part of this century, judges and practitioners would appear at law schools to lecture on professionalism matters, but these events were sporadic, and if attendance was required at all, students typically received no academic credit.' More systematic instruction was viewed as unnecessary, as law schools assumed that students learned what was necessary from the posting of the ABA Canons of Professional Ethics in the building and from individual faculty members who presumably transmitted lessons on professionalism in the context of their substantive courses.' By the late 1950s, most law schools offered some formalized ethics instruction but typically in an ungraded, one-hour format, reflecting limited institutional commitment to the subject.' This disinterest was evidenced further by the fact that the course was considered the "dog" of the curriculum, often assigned to a politically impotent member of the junior faculty, to a practitioner long on war stories, or, as a last resort, to the dean.' Students hardly were challenged, as the content of these courses often went no deeper, and was no more engaging, than a "chanting [of] the [ABA] canons."' When leaders of the American Association of Law Schools (AALS) recommended that law schools pay increased attention to PR, member schools balked. Furthermore, the ABA did little to promote the teaching and learning of the subject in conjunction with the reaccreditation process.10 In the aftermath of the high-profile Watergate scandal in the early 1970s and the serious wrongdoing of many lawyers, the ABA imposed a requirement that all accredited schools provide "instruction in the duties and responsibilities of the legal profession."" Over the next two decades the vast majority of schools came to satisfy this obligation by requiring that students take a two- or three-credit hour survey course in PR." In recent years some schools have offered additional electives, often tied to the ethical problems arising in particular practice areas, such as Tax or Criminal Law. A few schools have instituted specialized ethics programs, while many others have teachers who from time-to-time use the so-called "pervasive method" - raising PR issues in nonPR courses. And, of course, clinical courses typically have an ethical component.13 Last, faculty generally appear to be taking PR scholarship more seriously, as authors increasingly raise professionalism issues in non-PR casebooks and knotty issues are thrashed out in law review articles and symposia.14 In my view, the approach taken by most law schools is insufficient. The two- or three-credit hour survey course does not provide adequate time to cover the range of PR issues likely to face practitioners, let alone to expose students to important questions not answered, or even addressed, by the ABA and state codes.15 The survey nature of the course also makes it exceedingly difficult to raise the matters of moral philosophy and personal ethics that lawyers' multiple roles implicate. …