Whose Ethics? The Benchmark Problem in Legal Ethics Research
In Lawyers in Practice: Ethical Decision Making in Context, Leslie Levin & Lynn Mather, Eds. (2012)
Posted: 15 Jun 2012 Last revised: 13 Dec 2012
Date Written: June 14, 2012
How should we interpret differences between junior and senior lawyers’ perceptions of ethicality in the workplace? One theory holds that junior lawyers are more reliable informants; that their perceptions are not yet corrupted by self-interest and the demands of practice and therefore will tend to be closer to universal or ordinary morality. This is the predominant theory in the academic literature on large law firms, which tends to portray large law firms as being in perpetual moral decline. To some extent, this corruption narrative informs all critical legal ethics research.
An alternative theory holds that junior lawyers are inexperienced and/or naïve and therefore may be unreliable informants about professional matters. This theory views professional socialization as the process of acquiring knowledge and ethical judgment in complex situations. Junior lawyers, by definition, have not had time to acquire such knowledge and therefore are in no position to assess law firm management practices or senior lawyers’ work. Perhaps not surprisingly, this is the dominant theory among large firm partners and managers.
These two theories of lawyer socialization are not necessarily incompatible. Research on lawyers provides examples of both “ethical fading,” whereby lawyers gradually lose sight of ordinary morality, and “ethical learning,” whereby lawyers gradually acquire specialized ethical expertise. Moreover, lawyers may experience both ethical fading and ethical learning at different stages of their careers, in different practice contexts, and with respect to different issues in their work.
The challenge, however, is defining the benchmark for theoretical analysis. Should lawyers’ ethical standards and conduct be compared to ordinary (lay) morality? To the formal rules of legal ethics? Or to the prevailing professional norms within a specialized area of practice (which may or may not be consistent with the formal rules)? The definition of the normative benchmark itself has theoretical implications and is not always explicit in legal ethics research.
This chapter examines the use of benchmarks in legal ethics research and shows how different benchmarks may produce competing — but partial — theoretical claims. It argues, specifically, that the literature is biased toward critical accounts of “ethical fading” that are based on unspecified and/or internally inconsistent benchmarks. The goal of the chapter is to promote a more consistent specification of benchmarks in order to build a more holistic theory of lawyer socialization. A clearer definition of the normative baseline for analysis would allow more focused comparisons between junior and senior lawyers, as well as between different types of lawyers, and between lawyers and the members of other occupational groups.
Keywords: legal ethics, ethical fading, ethical learning, socialization, specialization, law firm culture, communities of practice, risk management
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