Can You Be a Legal Ethics Scholar and Have Guts?

Abstract

Recent efforts to hold lawyers accountable for their actions—including lawyers who sought to overturn the 2020 Presidential election based on false evidence, and New York City prosecutors who have committed serious misconduct—failed to draw a significant number of legal ethics scholars. The authors of this Essay are troubled by this. We understand why practicing lawyers might be reluctant to join such an effort; calling out other lawyers in positions of power can be bad for clients. But it is less understandable when it comes to law professors who, except for those who teach in law clinics or otherwise engage in law practice, have no clients. Legal ethics scholars write and teach—often from a secure academic position—about the importance of legal ethics.

The authors have been involved in both efforts. In this Essay, we examine why so many of our academic colleagues begged off, and why they are reluctant to use their privileged perch to speak out generally. We then argue for greater engagement in real world legal ethics, no matter how controversial. This Essay proceeds as follows: Part I explains what we mean by having “guts.” Part II acknowledges our debt to Monroe Freedman and Deborah Rhode, two scholars who were fully engaged in legal ethics in the real world. Part III discusses why filing disciplinary complaints under the Model Rules of Professional Conduct is a sound approach to holding lawyers accountable, even lawyers engaged in politics. Part IV recounts the prosecutorial misconduct project to which it was difficult to recruit legal ethics scholars. Part V identifies some factors we believe underlie our colleagues’ reluctance to become engaged in these sorts of efforts. Part VI suggests a path forward.

Keywords: ethics, model rules of professional conduct, lawyer discipline, prosecutorial misconduct, legal education