The Elusive 'High Road' for Lawyers: Teaching Professional Responsibility in a Shifting Context

Abstract

Many professional responsibility teachers believe our mandate is to teach professionalism rather than how to comply with the rules of professional responsibility or pass the professional responsibility exam. Yet, it is not particularly easy to define just what content goes into that vague concept of professionalism. Lawyers and professors repeat the mantra that your professional reputation is central to your long-term professional success. We insist on the values of taking the “high road” in a student’s professional career, and we try correspondingly to discourage ethical shortcuts characteristic of the “low road.” But the difference between these two paths — once one gets past extreme examples like lying or cheating — is not so easy to ascertain and to teach.This contribution to the symposium is an attempt to look critically at this effort to find and teach a high road. It explores both professional contributions and the contributions of academics who have formulas for an ethical lawyer. Ultimately, it argues that the high road is a relationship to a moving target — the legal and professional market that defines how one gains clients and maintains a good reputation among peers. This shifting relationship — much more toward the market than toward the state now — helps explain why so many recipes for the high road look anachronistic in today’s legal and business world. Finally, the article suggests that legal entrepreneurs contribute to redefining the “high road” up and down.