• 14 May 2009

Telling Law Students What’s Ahead

Anita Bernstein - Brooklyn Law School

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Group-ride bicyclists start their mornings with a “route rap.”  Before an extended ride begins, participants gather round, standing next to their bikes, and listen to their leader describe the itinerary ahead.  They might each hold a copy of a cue sheet that recites turns, landmarks, risks, and stopping points.  The route rap is part pep talk and part forewarning of difficulties: a pothole at Mile #3, rutted road surfaces before lunch, nasty uphill slopes, two chained dogs snarling at #21.  (Marathon runners may have a similar ritual.  I wouldn’t know.)

Partway through the route rap, tuning in and out, the cyclists remember why they came.  Details accrete, making the journey more vivid.  A catalogue or recommendation might have enumerated for them the attractions of the ride, but the experiential sequence laid out—first this, then that, watch for the other thing—gives destinations their texture.  Heralded difficulties, even for riders who think of glasses as half empty, become opportunities in the mind’s eye.  Any nasty uphill slope almost certainly brings a breezy reward.  Why are those dogs chained?  Must be something to see, a story to hear.  The big pothole, or the bad road surface?  Better to know about it now.  We’re all here voluntarily, after all; we signed up for the ride.

Planned, scripted bicycle outings have led me to reflect on how law students go through the J.D. curriculum in general, and how they receive training about their professional responsibility in particular.  On my bicycle, I am a consumer and recipient of route raps that others recite.  In the professional-responsibility classroom, it’s I who dole out the rapping.  Bicycle recitations, for me, generate what may seem an unlikely effect: even when—or is it just when, without the “even”?—a route rap warns us riders about negative contingencies like potholes, it gives us riders a boost of vigor and optimism. 

Teachers of professional responsibility who ride bikes and get route-rapped have to wonder whether the pedagogy transfers.  I think it does.  The survey class that most law schools impose as a graduation requirement can prepare students for entry into the legal profession by delving into occupational trouble.

Our line of work sure could use more vigor and optimism.  Anyone reading this far will recognize what I enumerate in the essay version of this editorial—with half a dozen footnotes duly appended—as a blight pervading American legal education, which writers describe variously as “demoralization, depression, dissatisfaction at work and in school, alienation, cynicism, heartlessness.”  These conditions stem at least in part from inside the school; self-selection does not explain all of them.  Careful regressions show that although gloomy individuals may feel lured by a J.D. program, law school environments make depression and other pathologies more intense. 

Now, if misery were necessary to the effective training of lawyers, just as boot camp is thought necessary to the making of soldiers, then we instructors (and students) would have to live with it.  Misery in law school may be traditional or familiar.  But necessary?  Route rap again: We’re tipped off about the rutted road surface at the sixteenth mile.  We nod.  We’re informed, ready to maneuver.  If someone knowledgeable had said, “You’ll be miserable, it’s awful out there,” we wouldn’t feel stronger.  It’s particulars that deliver us from malaise.

I call them pitfalls.  The term oversimplifies a bit for the sake of compactness.  What law schools should teach includes opportunities and invitations as well as metaphorical traps that can make ground give way below one’s feet.  But a focus on perils fits the rest of the curriculum and makes a class on professional responsibility comport with the standard mix of pessimism and preparation.  Just as Criminal Law tells you what you can get punished for, Corporate Finance and other business courses warn you what can happen if your client’s enterprise runs short of money, and Evidence tells you why a judge might not let you put on the testimony you want to use, Professional Responsibility or Legal Profession ought to advise you of your occupational hazards. 

Classes that emphasize the American Bar Association’s (ABA) Model Rules of Professional Conduct instead typically hew to disciplinary law.  Students learn of behaviors that can cost lawyers their licenses or otherwise provoke condemnation from bar authorities.  Because disciplinary rules are under-enforced, however, this classroom emphasis does not align with reality for most lawyers.  Several proscribed behaviors are almost universally flouted yet receive no sanction.  The clearest illustration is Model Rule 8.3, which obliges lawyers to report misconduct.  Other blackletter duties are also honored in the breach. 

A focus on pitfalls, by contrast, uses disciplinary law as only the beginning of forewarning new lawyers.  You could be sued for malpractice.  Your zealous advocacy might fulfill the elements of a crime like obstruction of justice; it might violate Sarbanes-Oxley.  Your work could be deemed ineffective—so unhelpful that your criminal-defendant client might be entitled to a new trial or the return of a plea because of its egregious badness.  If you’ve crossed some line before your case comes to trial, your assigned judge could disqualify you.  Maybe you could disqualify her: do you want to try?  Remember what Emerson said about shooting a king.  Free speech?  Welcome to a profession where your First Amendment rights are now lower with respect to the things you may say and the associations you might choose.  You have your own occupational common law of contracts, torts, crimes, property, agency, bailments, and fiduciary duty—and most of it doesn’t favor you.  Look out.

And yet, just as the nasty uphill promises a breezy downhill for the cyclist who listens to a route rap, the account of pitfalls for lawyers necessarily recites opportunities.  Every risk of loss for one lawyer presents a chance for gain for another.  You could prosecute a successful claim of malpractice.  If you are literally a prosecutor, you may charge an attorney with obstruction of justice.  Effective assistance of counsel, the Sixth Amendment right held by persons accused of crimes, could be the path your client takes to get out of prison or recover from professional humiliation.1  Disqualification of counsel and judges can make clients and lawyers better off.  Judges’ vast “inherent powers” to control their courtrooms could be yours, should you ascend to the bench.  Maybe you’re another kind of neutral in relation to partisan disputes: you could be an expert witness, a CLE authority, a mediator, a bar disciplinarian or rule-writer . . . or a law professor, perhaps.  Pitfalls are openings to power.  Seize them.

In my view, pitfalls is the only sensible way to understand the ABA rule that all accredited law schools must instruct students in professional responsibility, or “the history, goals, structure, values, rules and responsibilities of the legal profession and its members.”2  What other pedagogical point could this requirement advance?  Bear in mind that the ABA does not like to dictate curricular content.  It does not require law schools to teach contracts, property, torts, criminal law, or any other substantive topic regarded as central to training.  It does not compel what many advocates deem central to work as a lawyer: hands-on experience in a clinic, pro bono service, instruction in public speaking, or the completion of a writing project. 

When the ABA does issue a mandate, then, it has something fundamental in mind.  People like me, deputized to carry out the mandate in a classroom, must investigate what the rule seeks to achieve.  The most fundamental goal of any professional school is preparation.  What “history, goals, structure, values, rules” and so on all have in common, for purposes of training, is the guidance they can give newcomers on how to navigate the shoals ahead. 

Thus attention to pitfalls—particularly in a professional responsibility class, but elsewhere in the J.D. curriculum too—advances what might be understood as two separate goals.  It discharges the accreditation-standard obligation to prepare students for the practice of law, and it helps to combat tendencies toward malaise and discontent that obstruct legal education.  Any pedagogy that fosters two separate goals can indicate what the two have in common and how they reinforce each other.  I suspect that malaise and discontent within law schools arise at least in part from students’ suspicions that they are not being adequately prepared, and that students miss out on stimulating, career-preparing opportunities that arise for them in law schools when they are distracted by their own unhappiness or alienation. 

Perhaps needless to add, attention to pitfalls is not a tonic that will cure every ill in the building.  Some categories of law school disaffection seem relatively impervious to the charms of a detailed route rap.  Here are three examples.  A fraction of students wish they were elsewhere: recitations and warnings about the path ahead will not alleviate much pain when an individual thinks the entire journey is a mistake.  For other students, the journey is fine but the monetary price tag is not: even when they feel engaged by the content of their classrooms, they worry about repaying their loans.  Finally pitfalls, like any other pedagogy, can be misapplied or misunderstood.  The Scout model, Be Prepared, is after all a bit risible.  Sloppy teaching or listening might misconstrue training in pitfalls as a lesson of Don’t Get Caught, a pedagogy of cynicism. 

A few words on these resistances.

The first resistance to pitfalls-teaching stems from distaste for legal education or the legal profession.  We can all think of hypothetical reasons to regard lawyers and law with revulsion.  My own experience with law-student disaffection—anecdata, if you like—suggests that the phenomenon is ambivalent and complicated.  I have never met a law student who detested without nuance the thought of enrolling for a law degree and completing the work.  It behooves an instructor to consider how to leverage and turn around discontents.

Facing up to pitfalls of this profession can feel bracing for any law student, but it gives the disaffected a particular dash.  If in students’ minds the legal profession has become a looming menace, forcing postulants into a vocation they find unattractive, then the recitation of dangers and comeuppances reveals their enemy’s vulnerability.  Maneuvers covered in the pitfalls playbook—professional discipline, malpractice actions, other kinds of civil liability, criminal proceedings, disqualifications, judge-initiated sanctions—present accounts of how a lawyer can defeat another lawyer.  Pitfalls remind students that the power they are fighting is, in part, themselves.

Pitfalls-pedagogy has a similar, though weaker, relation to students’ anxiety about their financial future.  It cannot persuade all law students that the law degree that they are pursuing makes economic sense.  No pedagogy can; the calculations that underlie opportunity cost vary too much among individuals. 

Feeling modest in relation to the size of a tuition bill, I would make only a couple of small claims about the added value of pitfalls instruction.  First, disclosure.  Students embarking on an expensive course of study have a right to know about the vulnerabilities their occupation faces.  Disclosure necessarily communicates optimistic information too: if, as I try to emphasize in class, every pitfall is an opportunity for a lawyer, then in the aggregate pitfalls build advantages: government jobs for the disciplinarians, occasional windfalls for lawyers who initiate civil actions, and non-pecuniary wealth like the satisfaction of seeing one’s client, the victim of constitutionally inadequate legal assistance, released from prison. 

Second, comparative advantage: that is, pitfalls beats the alternative in a required course.  When money is tight and an often unloved course is required, students should not have to sit through homilies.  Anyone feeling the pinch of tuition would want to receive utility in each classroom hour.  Specific factual information about occupational trouble is in my view more valuable—it is certainly scarcer—than sermonettes about legal ethics that talk about “professionalism” or the superiority of truth to partisanship.

But what about legal ethics?  Isn’t the subject of professional responsibility more exalted, more transcendent and noble, than Be Prepared or Don’t Get Caught?  Indeed it is.  Yet individuals, no matter how intellectually inclined or fond of abstraction they may be, need particulars to work through problems of professional ethics.  At least I do.  Strictures like “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest” and “[a] lawyer shall not reveal information relating to the representation of a client” (from the Model Rules) and “Act only according to that maxim whereby you can at the same time will that it should become a universal law” (from Kant) fascinate me, but when I try to think about them as guideposts for a lawyer dealing with a client or prospective client, I need more content about the stakes. 

The pitfalls pedagogy supports discussion about legal ethics as both foundation and rooftop.  An instructor can use it to open colloquy: What could happen to you if you do that?  Now, is the opposite path any better?  Once perils have emerged in sufficient detail, emphasis can shift from Is to Ought.  Tougher, I think, to maneuver from Ought to Is, in the more familiar homily mode, where the discussion lacks a damned-if-you-do pair of dilemma horns that impale our classroom protagonist.  The pitfalls technique also can wrap up discussions when they start to gather wool: You may be right to value X, but the risk-management people who sell malpractice insurance insist on not-X.  Let’s take a look at what they require.

Ethical theory and blackletter law alike commend attention to pitfalls as a mode of fulfilling the accreditation mandate regarding instruction on professional responsibility.  On this occupational road, forewarned really does mean forearmed—and, if one is lucky, exhilarated.  Lawyers with a command of occupational dangers can defend themselves against onslaughts they might face, first in the corridors of law school and then when they venture into practice.  And pitfalls-preparation enables lawyers to pursue what is good for their clients, the profession, and the public.dingbat

 

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Anita Bernstein is Anita and Stuart Subotnick Professor of Law, Brooklyn Law School.

My thanks to faculty participants at a workshop at the University of Hawaii School of Law, especially Randall Roth, for their insights, and to my Brooklyn colleagues Joan Wexler, Ed Cheng, and Nelson Tebbe for helpful comments on a draft. My thanks also to the Brooklyn Law School faculty research program for its support. This Editorial is indebted to the foresight and creative thinking of Judge Hugh Lawson of the United States District Court for the Middle District of Georgia, who established an endowment to create and support my post as the Sam Nunn Professor of Law at Emory University (2000-07), as well as training for lawyers and law students.

This Editorial is based on the following Essay:   Anita Bernstein, Pitfalls Ahead: A Manifesto for the Training of Lawyers, 94 CORNELL L. REV. 479 (2008). Click Here for the Full Version

  1. Rollins v. State, 591 S.E.2d 796 (Ga. 2004) involved the return of a guilty plea. Rollins was a young lawyer who had imprudently pleaded guilty to drug possession before going on to law school.
  2. 2007-2008 STANDARDS FOR APPROVAL OF LAW SCHOOLS, ch. 3, Standard 302(a)(5), available at http://www.abanet.org/legaled/standards/20072008 StandardsWebContent/Chapter%203.pdf.

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