Tabor Lecture: The (Over)Use of Age and Custom in Legal Ethics
40 Pages Posted: 17 Jan 2019
Date Written: January 17, 2018
The influence of old and customary ways on legal ethics is ubiquitous. Like other humans, the members and regulators of the profession suffer from heuristics and biases — including the status quo bias. Unsurprisingly, those who resist a particular ethical application or ethical improvement in legal or judicial ethics often invoke tradition and preexisting practice as reasons against change; the ABA, courts, scholars, and lawyers have all done so in recent memory (several examples of which are discussed in this Essay). This older-is-better approach raises concerns because it can ignore or hamper the pursuit of excellence characteristic of professions. In addition to becoming and remaining competent in practice, lawyers and judges are supposed to seek the improvement of the law and the delivery of legal services. Moreover, although ethics of course incorporates and protects certain enduring principles (including deontological concepts), legal and judicial ethics as written or applied are subject to revision to correct previous errors or omissions and to account for the changed context, including new members and new types of practice. On the twentieth anniversary of the Tabor Lecture in Legal Ethics, this Essay explores whether and to what extent a preoccupation with old and customary practices risks stunting and stagnating our ethical professional development.
Keywords: Legal Ethics, Custom, Prevailing Professional Norms, Prevailing Practices, ABA Model Rules of Professional Conduct, Rule 8.4(g)
JEL Classification: K1, K4, K23, K40, K49
Suggested Citation: Suggested Citation