Another nice mention of my book Skills & Values: Discovery Practice was posted to the Legal Skills Prof blog. It was written by Scott Fruehwald:
While the supplemental skills training texts in the Skills & Values Series from LexisNexis do vary in format, most of them include materials on ethics training. As I stated in a post last week, I am especially impressed by Discovery Practice by David I.C. Thomson (2010). In this book, Professor Thomson makes ethics an integral part of discovery teaching. Considering that discovery involves the tension between the ethical duties of zealous representation and confidentiality to the client with the duties of fairness and disclosure to the court and to other parties, it makes a great deal of sense to include professionalism here.
In sum, I agree with the Carnegie Report that we need to teach professionalism better in law school. Probably the best way of doing this to incorporate skills training into doctrinal courses, especially now that casebooks and supplemental texts allow professors to easily do this.
Scott is right on track. It is possible to integrate professional ethics issues into any doctrinal course, and with the Skills & Values Series (as it grows to cover nearly every subject), it should be fairly easy to do.
I would only add that as we develop our thinking about professional ethics instruction, we should be explicit about what we mean. It seems to me that the terms "Professionalism" and "Professional Identity" have been getting confused. Yes, there is some overlap between them, but each contains components that are distinct from the other. The Carnegie report is critical of legal education in not teaching or - more accurately, I think - creating opportunities for students to develop their professional identities.
Here is my shot at the distinction - Professionalism relates to behaviors, such as timeliness, thoroughness, respect towards opposing counsel and judges, responding to clients in a timely fashion. I actually think we teach this pretty well in law school, across the curriculum. We expect certain behaviors (often we define them in our course policies documents, and certainly they are defined in the student handbook), and for the most part we get them. Professional identity relates to one’s own decisions about those behaviors (which sounds like overlap, but it’s not), as well as a sense of duty as an officer of the court and responsibility as part of a system in our society that is engaged in upholding the rule of law. For me, “teaching” Professional Identity means we ask the student to finish this sentence: “I am a lawyer, and that means, for me that I will resolve this ethical dilemma as follows…” Carnegie is right when it says we don't do that very well across the curriculum
Of course, clinicians do, and so do lawyering process and practice-based courses (such as trial practice, or the Discovery Practice course that I teach). Anytime you present a student with a practice-based ethical dilemma and ask them to learn the applicable rule(s), choose their own path, and then reflect on their decision, you are allowing them to form their professional identity. But we could do more of this, throughout the curriculum. Let's be clear, though, what we mean by Professionalism and Professional Identity.
