Teaching Kinder, Gentler Legal Ethics

Teaching Legal Ethics as a summer course for the first time seemed like a good opportunity to try some new techniques, or some old techniques I’ve never quite mastered before. This week I had four students do a role-playing exercise on working with an impaired lawyer (a lawyer suffering from substance abuse or depression). I gave them an outline of the simulation: one played the impaired lawyer, one a friend and associate in the firm, and two senior partners. The first act was a conversation between the lawyer and the associate; the second act was some time later, when the two senior partners have gotten involved. I gave them some short readings for guidance (see the list below) and let them loose to script their own scenario.

I wanted to see how the students handled this difficult conversation. I hoped that the first act would explore how a friend and co-worker would at least attempt to raise his or her concerns (a drinking problem, in the scenario they developed) in a sensitive and compassionate way. The students all did a very good job of analyzing the issues and the Model Rules, and played their parts well. They clearly took the assignment seriously. I should probably not have been surprised, though, that the scenario played out immediately in a somewhat adversarial, disciplinary, and corporate style. The tenor of the first conversation was “I’ve noticed some problems, and if you don’t shape up I’ll have to report you to the senior partners.”

From the discussion after the exercise, it was clear that the students focused on the reporting requirements of the Model Rules and on the potential liability of the law firm. While those are important, I also wanted to get across the human aspects of situations like this, and how a law firm may respond in a positive and supportive way to lawyers’ personal issues without hiding them or looking the other way. I suggested that law firm cultures vary, and that the setting they created was a highly corporate and depersonalized one. Some firms (I hope) have a culture that is more personal and caring. Rather than immediately putting the lawyer on paid leave of absence, as they did in their role-playing, a firm might grant the impaired lawyer a temporarily reduced workload, with appropriate supervision and guidance.

What I learned from the exercise was that I need to do more to emphasize the humanity of lawyers amid ethical concerns. The “scared straight” approach, while useful in moderation, can be counterproductive if it promotes depersonalization and incivility, even among colleagues in the same firm.

Readings:

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