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Law School Ethics Becomes ‘Real,’ Tackles Covid, Social Justice

Jan. 25, 2022, 9:45 AM

Standard legal ethics courses, long considered dry and theoretical by many students, have experienced a renaissance over the past two years due to the pandemic and an increased focus on social justice.

Law school professional responsibility professors say they’ve shifted the focus of their classroom conversations, putting more emphasis on practical topics like what the post-pandemic law office will look like and how to incorporate principles of diversity, equity, and inclusion in future lawyers’ practices.

The pandemic “has sped up the pace of change that we were already seeing” regarding what’s discussed and which rules are emphasized, said Cassandra Burke Robertson, director of Case Western Reserve University School of Law’s Center for Professional Ethics.

Professional responsibility has always had the concepts of access to justice and diversity, equity, and inclusion “baked into it,” said Sarah Williams, who teaches the course at Penn State Dickinson Law School.

But the past two years have “made those conversations real for the students,” said Williams.

Between the pandemic and the Black Lives Matter movement, “it’s become a much more engaging course,” said Robert M. Jarvis, a legal ethics professor at Nova Southeastern University’s Shepard Broad College of Law in Fort Lauderdale, Fla.

Post-Pandemic Office

Law offices have changed dramatically due to the pandemic, and future lawyers must figure out when in-person versus remote work is best, and what ethics rules they need to pay closer attention to in the post-pandemic office setting, professors say.

Students need to differentiate between what’s easier and what environment—remote or in-person—will make them a better lawyer, said Ray Brescia, who teaches professional responsibility at Albany Law School.

They’ll have to be able to make a judgment call about how a client might benefit from in-person interactions, as opposed to going remote, Robertson said.

If a client is at all cost-conscious, they generally prefer to be remote but might not realize what’s being lost with that personal touch, Robertson said. And maybe that’s where the duty of competence comes into play, she said.

Lawyers will need to “find other ways to do that client relationship development without needing to be in-person all the time,” Robertson said.

There are also more personal considerations such as which setting allows new lawyers to do their best work, get the mentoring and training they need, and strike the right work-life balance, Brescia said.

In addition to competence, lawyers working remotely must also consider ethics rules on deceit and honesty toward the tribunal, said Robertson. It’s “easier to cheat and harder to get caught” when working remotely on depositions, for example, by improperly coaching a witness, said Robertson.

Similarly, remote work makes technical competence all the more important. Jarvis said he and his students discuss whether there should be a separate rule devoted to that issue.

Robertson said she is now teaching how states regulate the unauthorized practice of law. States loosened their remote work rules during the pandemic, and it’s no longer considered unethical for lawyers to work in states where they’re not licensed in many jurisdictions.

Students considering remote work must know they’ll need to be aware of the rules of the jurisdiction where they live but also where they’re licensed when considering this option, Robertson said.

Social Justice

A new emphasis on social justice is also changing the way legal ethics gets taught.

The murders of George Floyd and Ahmaud Arbery, and the killing of Breonna Taylor, as well as the disparate impact of the pandemic on communities of color have shifted the conversation from a theoretical to a practical discussion of how lawyers can help combat social injustice.

“Now we have students who have been or know somebody who was evicted after losing their job to Covid or arrested for engaging in legal protests,” said Williams.

A traditional professional responsibility curriculum would talk about equal access to justice because the preamble to the model rules says how all lawyers should work to ensure it, Williams said. Now, there’s more emphasis on what your duties are to make a difference in your own practice, he added.

Diversity, equity, inclusion, and access to legal services are more of a priority she said. Instead of winding up at the end of the course textbook, they’re getting discussed first.

J. Peyton Moses, a second-year student at Nova Southeastern University’s Shepard Broad College of Law, said drawing up on real-world examples, such as Rudy Giuliani’s temporary suspension for his involvement in frivolous election fraud lawsuits, and a Florida lawyer who dressed up as the grim reaper, made classroom discussions relevant and practical.

Moses expected the legal ethics class to be a discussion of “bright-line rules and what was ethical and what was unethical.” But in reality, he learned that there are a lot of “gray areas,” he said.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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