When we think about lawyers’ ethics we think about individual lawyers and their choices. Our codes of conduct apply to lawyers as individuals. We consider whether an individual violated his ethical obligations. We sanction individual lawyers. But beyond that limited regulatory focus (which Adam Dodek has persuasively questioned, and which some regulators are moving beyond), our general conversations about lawyers’ ethics tend to focus on the individual. We talk about the good lawyer and the bad lawyer, the ethical lawyer and the unethical lawyer; we think about lawyers’ ethics in light of the ethical quality of the choices made by individuals. What I want to explore here is what we miss by looking at lawyers’ ethics in this way, as a product of individuals and individual decision-making. In particular, I want to suggest that doing so obscures the extent to which the quality of a lawyer’s conduct is shaped in significant part by cultural and social forces; understanding ethical conduct in light of the choices of an individual lawyer misses the extent to which those choices reflect the lawyer’s environment. And, ultimately, if we want good lawyers we need to foster cultures that value and foster good lawyering. Focusing only on individuals will never get us there.
The genesis of this column was the confirmation of Brett Kavanaugh as a justice of the United States Supreme Court. Because what stood out for me in relation to those events was the extent to which the focus was on Justice Kavanaugh’s moral character – on what his high school behaviour, and especially the alleged sexual assault, revealed about that character. Yet the evidence that came forward through the hearing revealed fairly dramatically that the environment in which Justice Kavanaugh was immersed in high school was morally defective. And that made me wonder whether proving that he committed such an assault would reveal Brett Kavanaugh’s moral character or whether it would reveal instead the behavioural impact of the morally doubtful high school environment in which Brett Kavanaugh was immersed. To set it out more fully, Brett Kavanaugh’s high school community celebrated drinking to excess. It valued sexual conquest. It viewed women as the people to conquer. In such a community is it really surprising that a 17-year-old would drink too much and treat a woman’s bodily integrity with contempt and disregard while his friend cheered him on? I am not excusing the behaviour of that 17-year-old. I am not suggesting that he was not responsible for his actions or that he could not be properly held responsible for them. But I am suggesting that communities like the one Brett Kavanaugh belonged to in high school encourage awful conduct in a manner distinct from the moral capacity and quality of the individual men who belong to it. They obscure the moral quality of decisions. When we judge those men, we need to look not just at them, but also to account for the circumstances in which they made the choices that they did. And when we want to push men to act differently, we should pay attention to the cultures and communities that surround them. We need to do more than encourage men to be attentive to consent; we need to encourage them to belong to communities that value women and respect their sexual integrity and autonomy.
A story that arose in conjunction with the Kavanaugh hearings, about Yale Law School and the conduct of Professors Jeb Rubenfeld and Amy Chua, reinforced but also brought another angle to this line of thinking. As reported in Slate, some students have alleged that Professor Rubenfeld engaged in inappropriate conduct with them. Now nothing in the story as reported by Slate suggests that the environment of YLS would obscure the moral quality of a professor sexually harassing students. But what the story suggests – and what is certainly consistent with my own observations as a grad student at YLS – is that the YLS culture makes those sorts of abuses easier to commit and harder to police. It does so in two respects. First, Yale doesn’t grade its first year courses, and essentially every student passes, as a result of which there are no objective criteria for distinguishing between the academic abilities of different students. And even in the upper years, YLS grades on a flat curve with limited distinctions (Honors/Pass/Low Pass/Fail), such that students in the top part of the class are likely to have similar academic profiles. Second, many students want to obtain judicial clerkships, and ideally clerkships with the most prestigious courts and judges. But because of the absence or limits on grading, students seeking clerkships must build personal relationships with certain professors rather than simply performing well in a professor’s course; professors personally create access to opportunities and wield significant power over students. Students who complain about inappropriate professorial behaviour will, by destroying the relationships on which they rely, pay a cost that they would not have to pay if they could rely on grades to get ahead. As reported by Slate, Professor Rubenfeld is an important reference for students seeking clerkships and is also married to Professor Chua, who has been central to the clerkship process at YLS. That created a power dynamic that pushed students to put themselves in a position where they might be harassed, as well as limiting their ability to complain about harassment if it occurred. Preventing and addressing harassment requires more than a shared belief that it’s wrong; it requires ensuring that the environment isn’t one in which harassment can thrive.
Communities of course do not aim to have these operational effects (at least not normally). YLS likely eliminated grading to decrease stress and competition and to reflect the high quality of its JD students. It did not try to make professorial harassment more likely to occur and harder to address. And in drinking to excess and boasting (largely falsely) about their sexual conquests high school boys do not think sexual assault is acceptable or ought to be encouraged. They may just lose the ability to appreciate that their conduct is, in fact, sexual assault.
The observation that communities and cultures can create conditions which foster undesirable behaviour is of course neither new nor original. As the famous 1982 article “Broken Windows” noted:
Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing. (It has always been fun.) (George L Kelling and James Q Wilson, “Broken Windows” The Atlantic, March 1982)
Mitt Regan and Amy Salyzyn have also considered this point in relation to law firms that adopt ethical infrastructure, and I have explored it in relation to unethical billing. Nonetheless, it is an insight that is often lost in conversations about ethics and morals, where we focus on what it means to be a good person. In the wonderful television show The Good Place, the judge keeps score on the moral quality of individuals, not their communities. The show implicitly and intelligently criticizes that premise, but that it begins with it shows I think our usual starting point for thinking about what goodness is and who is responsible for achieving it.
Thinking about lawyers in a broader way requires looking at the conditions in which lawyers practice, and how those conditions affect lawyer’s decision-making. It requires recognizing that things about law firms that may on their own seem distinct from lawyers’ core ethical duty – to advocate for clients within the bounds of legality – may nonetheless impact how likely lawyers are to comply with those duties. Law firms which underpay staff, tolerate lawyers who harass or verbally abuse associates, make excess drinking a normal part of social events, tolerate rudeness, and which accept or encourage overbilling are also, I am suggesting, firms more likely to fail to protect their clients’ interests or to push their representation beyond what the law permits. If a law firm wants to encourage ethical practice, it needs to pay attention not only to the things that directly constitute lawyers’ ethics such as avoiding conflicts of interest; it also needs to pay attention to the broader firm culture and norms of behaviour.
I was recently asked by some law students how they should choose a law firm to work at if they wanted to be ethical lawyers. And I gave them my honest (if unhelpful) view, that the things they need to find in a firm are things that can be hard to see at an interview but that speak to its overall culture and commitment to operating in an ethical way. If I were to answer that question more fully I would say that students should try to discover: does the firm retain and promote women? Does it have a diverse workforce? Does it encourage lawyers to participate in the broader community in a positive way? Does it have a culture of politeness? Do associates or staff feel bullied? Does it normalize excessive drinking? Does it encourage lawyers to spend time with their families, or does it expect nights out at the bar? While none of those things is itself strictly relevant to whether a law firm advocates for clients within the bounds of legality, each of them in my view speaks to the likelihood that a law firm will do so effectively and properly.