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The Legal Profession

B614, Spring, 2009

Faculty

Charles Geyh
Office: 278
cgeyh@indiana.edu, (812) 855-3210
William Henderson
Office: 255
Office Hours:
wihender@indiana.edu, (812) 856-1788
Lauren Robel
Dean Lauren Robel
Office: Room 240
lrobel@indiana.edu, (812) 855-8885

Special Lecturers

Professor Carwina Weng
Office: LB 301
wengc@indiana.edu
Ph. 812-855-9809
Professor Marc Galanter
Office: TBA
msgalant@wisc.edu
Ph. TBA

Required Course Materials

  • Lisa Lerman & Philip Shrags, Ethical Problems in the Practice of Law (Aspen 2008) (denoted "CB")
  • Online course materials via course website
  • Model Rules of Professional Conduct (denoted "MR")
  • I-clicker (supplied by Law School)

Structure and Content of Course

The course in which you are now enrolled, Legal Professions (B 614), is a long-time law school offering that satisfies the ABA requirement for training in legal ethics and professional responsibility. It covers doctrinal material on the Model Rules of Professional Conduct and what is sometimes referred to as the "law of lawyering."1 The Indiana Law faculty, however, recently retooled this course so that it could accomplish an additional, more ambitious goal: to provide first-year students with a solid foundation for building a successful and satisfying professional career.

There are two features that distinguish this new Legal Professions course from a traditional Professional Responsibility ("PR") course. First, it is allocated four credits as compared to two or three at other law schools. In other words, it is on par with other foundational law school courses. Second, this course is taken during your first year of law school—a highly formative time period in your professional careers. These two features are significant. The four credit hours enable us to cover a wide array of material on the history and structure of the legal profession; in addition, the course includes several Practice Setting Forums, which draw upon distinguished practicing lawyers to realistically examine several course themes. The 1L timing of the course also provides you with a solid factual basis to identify and evaluate important career choices and to develop your own distinctive strategy for professional development.

A related goal of the new Legal Professions course is to help students gain a sense of perspective on their law school experience. From your other 1L courses, you will (correctly) infer that careful, precise legal analysis is an important element of effective lawyering. But success as a lawyer-or more broadly, as a professional-also requires a wider array of abilities and perspectives. Virtually every law firm partner, government agency supervisor, public interest lawyer, or corporate general counsel can recount examples of lawyers who, despite stellar "law review" credentials, failed to progress professionally and eventually left the organization. Conversely, when lawyers reflect upon truly great lawyers who have influenced their careers, descriptions often encompass traits such as character, integrity, diligence, discretion, kindness, judgment, wit, communication, empathy, and creativity, none of which is necessarily correlated with law school rank. Readings, class discussion and group exercises in this course will provide ample opportunity to reflect intelligently upon the relative importance of these attributes and thus develop a sense of proportion, judgment, and collegiality that will last well beyond your 1L year.

As we explore the relationship between legal ethics, professionalism, and success, it is important to emphasize that the instructors teaching the four sections of this course, as well as alumni who will be participating in the Practice Setting Forums, readily acknowledge that "success" is an inherently personal concept that requires value judgments. In particular, different values and interests are going to lead people into different career paths. Further, for some lawyers, financial rewards will sometimes be in conflict with intellectual stimulation or psychological or emotional satisfaction. A threshold question is this: What is the best fit for you? Obviously, the answer presupposes an honest appraisal of your own values.2 This course will help you begin to answer the "fit" question by providing a systematic examination of different types of lawyers, including the benefits and burdens of several common practice settings and their unique or recurring ethical conundrums. For example, as a 1L student, you would probably like to know the answers to the following questions:

  • Solo and Small Firm Lawyers. What are the benefits and burdens of solo or small firm practice? How much money do these lawyers make? Does it depend upon practice area? What business skills are involved? Is it a myth that these lawyers enjoy a better work-life balance? How feasible is it to hang a shingle? Why are a disproportionate number of ethics complaints directed at small firm lawyers?
  • Large Firm (Corporate) Lawyers. What are the benefits and burdens of serving corporate clientele? The associates work long hours, but does it get any better if you get promoted to partner? What does it take to become partner? Does it make sense to work for a large firm if the prospects of partnership are low? Does it vary by city, type of firm, or practice area? How, if at all, do compensation systems affect or influence ethical behavior within large firms?
  • Prosecutors, Public Defenders, and Criminal Defense Lawyers. Is there any tension between career advancement and the ethical use of "prosecutorial discretion"? Who, exactly, is a prosecutor's "client"? For public defenders, what is the difference between a "competent" and an excellent criminal defense? Under the case law, how competent is "competent" and how does a competent lawyer defend a "guilty" client without behaving unethically? What are the long term options for lawyers working in the criminal justice system? Does it vary by state versus federal systems?
  • Plaintiffs' Side Trial Lawyers. These lawyers get the large judgments that grab headlines;3 they are also the targets of "tort reform" legislation. What are the history, structure, and economics of this industry? How common are frivolous lawsuits? In an era in which virtually all civil cases settle, actual trial experience is extremely valuable. Where/how did these lawyers learn to try cases?
  • Public Interest Lawyers. What is the purpose of public interest lawyering-to provide relief to clients in need or to engage in cause lawyering (i.e., to use litigation and legislation to change underlying social conditions)? How do public interest lawyer resolve conflicts between the needs of clients and the cause? How are these organizations financed? What are the career benefits and drawbacks of this work?
  • Corporate General Counsel. Over the last 30 years, the job of in-house corporate lawyer has grown in influence and prestige. What is driving this trend? Does having a single "client" compromise a lawyer's independence and professional judgment? What is the typical career path of these lawyers? How common is it for lawyers to become top business executives?

During the course of the academic year, you will have the opportunity to meet distinguished lawyers from each of these practice settings, many of whom are alumni of Indiana Law. Come prepared, stay focused 4 and ask intelligent questions and broaden your career plans.

Finally, this course will introduce you to various theories of professionalism and different regimes for the regulation of lawyers (e.g., self-regulation through state courts and bar disciplinary commissions; through malpractice litigation; through legal malpractice insurers; bar associations, etc.). We will also explore the sources of professional ideals, such as autonomy, independence, and public service. You are not a passive observer in this dialogue. This course will press you to identify (a) the types of lawyer misconduct that needs to be policed; (b) the optimal methods of enforcements (the "best" may be too costly); and (c) appropriate sanctions to deter, punish, or both. The answers to these issues require more than your preconceptions and opinions; you will need to gather facts and weigh them impartially. For future lawyers, this course is a microcosm: how seriously you approach your course work and how you interact with your classmates reflect the wisdom (or imprudence) of self-regulation. Ready or not, your generation will soon be handed the keys to a profession that has enormous influence on social, political, and business affairs.

Fall Activities and Programming

The Legal Professions course is listed as four credits during the Spring semester. The requirements of the course, however, actually begin during the fall semester. Specifically, each incoming student is assigned to a Practice Group, which is a unit of six to seven students who will meet periodically throughout the semester to do exercises related to self-assessment and professional development. Each Practice Group is also assigned an upper-level student who will serve as the group's Advisor (PGA) and lead or facilitate several of your activities.

Note that your Practice Group serves an important role in this course. During the spring semester, the students from each Practice Group will be enrolled in the same section of Legal Professions and will be given several group assignments, including two formal presentations to your class (see Assessments and Grades, below). There are at least three practical reasons why you should give your best effort to your Practice Group responsibilities: (1) it is an investment that will affect your grade in the course; (2) it is an opportunity to build trust and respect within a professional network that will last your entire career-much longer than any grade you receive during your first year of law school;6 and (3) the Practice Group activities provide assessment tools for enhancing your emotional intelligence, which research increasingly is demonstrating is the key factor for achieving success and happiness in your professional work life.

In addition to your Practice Group activities, there will be a series of programs during the fall semester that are related to the course or other aspects of professional development. Some of these programs are done in conjunctions with the Office of Career and Professional Development (OCPD); other are organized and moderated by the course instructors. These programs are designed to help you build a strong foundation for professional success and personal satisfaction. Although it is important that these programs take place during the (highly formative) first semester, the programs themselves will require little or no formal preparation. In other words, during the fall semester, your study time will be devoted to your first semester courses.

Assessment and Grades

Your final grade is based on a 100 point scale with the following breakdown:

ComponentWeight
Paper Assignment (2000 words)20 points
Group Exercise (organized by Practice Group):15 points
Class and Group Participation (quality and quantity):15 points
Final Exam50 points
Total100 points

The graded components of this course reflect two interrelated topics: (1) traditional legal doctrine on professional responsibility, legal ethics, and the law of lawyering; and (2) extensive readings, problems, and class exercises that are designed to familiarize you with a wide range of practice settings and to enhance your professional development and judgment. This second category, obviously, cannot be reduced to objectively right or wrong answers. Yet, it is undeniable that the nebulous concept of professionalism is often the lynchpin of a highly successful career. At a recent meeting convened by the Carnegie Center for the Advancement of teaching, Mack Lipkin, a leading innovator in the clinical training of doctors, observed, "What we assess signals to students what we value. If we want doctors who can communicate with patients and render effective diagnosis and treatment, we have to assess those skills. The record is clear; students develop strong competencies in the areas we chose to test."

In the law school context, PR courses tend to focus on legal doctrine because this area can be tested using the typical law school exam. Professionalism, however, is an important part of this course. Therefore, it makes up a substantial portion of your final grade. In consultation with education experts at the Carnegie Center for the Advancement of Teaching, the instructors have substantially mitigated the subjective nature of professionalism assessment by assigning complex group projects that are peer reviewed at three levels:

(a) At the Practice Group level, by class members outside your Group;
(b) At the individual level, by members of your Practice Group;
(c) At the section level, by the instructor.

Feedback of Practice Group presentations and other work product will be solicited via electronic surveys. Your feedback to fellow students will be completely anonymous; the instructor, however, will have access to the identity of each respondent. An edited peer evaluation will be provided to each Practice Group and each student. Drawing upon all the available evidence, the instructor will assign the final grade for group projects (15%) and class/group participation points (15%). The peer feedback is advisory in nature. You should operate on the assumption, however, that peer feedback will be highly influential on your final grade. The best marks will go to students who are strong contributors to strong Practice Group projects and provide valuable, constructive feedback to their peers.

Note that we distributed a copy of this syllabus during 1L orientation despite the fact that Legal Professions is a second semester course. We wanted to provide each of you with notice that your relationship with your Practice Group will eventually influence your Legal Professions grade. It is not necessary for you to develop close personal relationships with your fellow Group members; but the ability to develop and maintain a strong working relationship is an important professional skill.7 The reports we have received from Practice Group leaders were overwhelmingly positive. Here is one more gentle reminder: Treat each other with respect and remember that a subpar attitude, planning, or execution by any one of you has consequences for your Group. If repeated in the professional environment, it will seriously damage your career.

The following is a brief summary of each graded class component:

Reflective Essay (20 points). Each student is required to write a reflective analytical essay of no more than 2,000 words. The essay will use an interview with a practicing lawyer, conducted by the Practice Group as a whole, to explore various facets of the course materials. The purpose of the group interview is two-fold: (1) students can benefit from each other questions and discuss their differing impressions, thus resulting in better essays; and (2) the interview will be the basis for a short group presentation during the last week of class. (The Group Presentation will be worth an additional 5 points and is described in greater detail under the Group Presentation section.)

Although the interview itself will be done at the Practice Group level, each student will be responsible for writing his or her own essay. An "A" quality essay will marshal the course materials and the lawyer interview to support a strong, interesting thesis about professionalism, legal ethics, or the practice of law. Grading criteria include style, organization, clarity, conciseness, integration of course materials, originality, and analytical rigor. Further, to receive maximum credit, your narrative must touch-on at least one ethical dimension (broadly defined) of the lawyer's job or practice setting. (Examples of outstanding work from prior students will be available for your review.) Although this assignment is an analytical essay, it is also reflective and thus personal. Because your thoughts and impressions are part of the narrative, you are encouraged to write in the first person.

Practice Groups will have some latitude in selecting their lawyer-interviewee. During the spring semester, the Law School has made arrangements for several alumni to visit Bloomington. Drawing upon a list of alumni and their job settings, students will have the opportunity to preference the alumni they would like to interview. After students are matched with alumni, students can coordinate a time to conduct the interviews. Alternatively, Practice Groups can opt-out of the alumni list and select another lawyer. The proposed lawyer-interviewee, however, cannot be part of the immediate or extended family of any Group Member. Interviews are best done in person, but phone or conference call interviews are permissible if an in-person meeting cannot be scheduled.

Selection of attorney interviews, including the attorney's agreement to participate, must be complete no later than Friday, March 13, 2009 at 4 pm. If your Practice Group has opted out of the alumni list, please have a Group member email your instructor the name of the interviewee and a list of participating Group members. Interviews should be scheduled and completed in a timely fashion.

Essays are due on Friday, April 10 at 4 pm. Each essay must document its word count (no more than 2,000 words), the date and duration of the interview, and whether it was conducted in person or over the phone. Email submissions will not be accepted without advance permission from the instructor. Please submit a hard copy to the location designated by your instructor.

Group Projects (15 points). Each Practice Group will be responsible for four class presentations and accompanying written work product that will be distributed to the class in advance. The first two group assignments will be ungraded; however, the relative performance of each Practice Group (based on peer feedback) will be shared with the class. In other words, you will see what your grade would have been. This permits each Group to learn from its experience and make necessary adjustments in preparation for the graded group assignments. The first group assignment (ungraded) is Class #4; each group will have the same assignment. The second group assignment (also ungraded) is divided over three classes (#16, #17, #21); two to three practice groups will do each assignment. The two graded assignments will take place during the last two weeks of class. The breakdown of points will be as follows:

  • April 13-15 (Classes #31-33): Analysis and resolution of Problem Scenarios involving ethical, practical, and professional judgment (10 points)
  • April 20-21 (Classes #34-35): Presentation and discussion of lawyer-interviewees (5 points)

With the exception of the presentation on lawyer-interviewees, at least two groups will make presentations on the same group exercise, so it is inevitable that your performance will be directly compared to another group. Your project grade will be based upon the instructor's evaluation, strongly informed by peer feedback. The identical grade will be given to each Practice Group member. Because your fates are tied together, it is important that you utilize (or develop) good teamwork skills.

Class/Group Participation (15 points). This portion of your grade will be based primarily on contributions to the group projects as assessed by your fellow Practice Group members. The instructor, however, may adjust this grade up or down based on attendance and participation in class and the Practice Setting Forums. In addition, students who provide exceptional constructive advice to peers may also receive a higher grade. Conversely, students who do not complete the electronic evaluations of peers will get a very low score. In assigning your grade, your instructor may seek input from your Practice Group Advisor.

Final Examination (50 points). The course will include a final examination, which will focus primarily on the doctrine and policy of legal ethics, professional responsibility, and the law of lawyering.

Practice Setting Forums and Guest Speakers

During the course of the 2008-09 academic year, the Law School will convene eight forums featuring distinguished outside speakers. Three forums will be in the fall; five are scheduled for the spring. The first forum (Sept. 18) will provide a historical overview of the legal profession, thus bringing our modern understanding of lawyers into sharper relief. Our speaker for this inaugural event is Professor Marc Galanter, who is one of the academy's leading historians and commentators on the legal profession. The next six events will be Practice Setting Forums, which focus on specific practice areas and feature two to four practicing lawyers. A tentative list of practice areas include:

  • Public Interest
  • Law Firms and Private Practice
  • Plaintiffs' side trial work
  • Mediators, Arbitrators, and Judges
  • In-house counsel for corporations and/or government agencies
  • Prosecutors and Criminal Defense Lawyers

During these forums, we encourage students always to examine one recurring question: What is the role of legal ethics, personal values and morality in the development of a successful legal career? Perhaps we can gain insight on this topic by comparing the answers of our distinguished guest speakers.

The Practice Setting and Guest Speaker Forums will last approximately 90 minutes and will offset some of the total classroom hours for the course. The Forums will include all four sections of the course and be held on Thursday afternoons from 4:00 to 5:30 pm in the Moot Courtroom. You will be expected to attend each Forum; attendance will be taken through a sign-in sheet. Please reserve the following dates on your calendar: Sept. 18, Oct. 2, Oct. 30, Feb. 12, Feb. 26, Mar. 12, Apr. 2. 8

To commemorate the milestone of your 1L year, the course will end with a guest speaker who will be chosen by representatives of each section in conjunction with the faculty. Thanks to a generous gift from an alumnus, we have a travel budget available for this event and can afford to pay a modest honorarium. Tentative dates for this event are Thursday, April 16 or Thursday, April 23. We hope you will select a speaker who will inspire you toward lofty, ambitious personal and professional goals, whatever they may be.

Footnotes

  • 1 The ABA Accreditation Standards requires a law school to provide each student with "substantial instruction in: ... (5) the history, goals, structure, values, rules and responsibilities of the legal profession and its members." ABA Accreditation Standard 302(a)(5); see also Interpretation 302-9 (requiring "instruction in matters such as the law of lawyering and the Model Rules of Professional Conduct of the American Bar Association").
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  • 2 One of the hazards of law school is being cowed by the choices and opinions of your peers, who are talented and appear to be all-knowing. Wade through the evidence yourself and make up your own mind.
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  • 3 One of the nation's most famous plaintiffs' side trial lawyers is former presidential candidate John Edwards, who is a member of the Inner Circle of Advocates. See http://www.innercircle.org/ (summarizing membership criteria, including million dollar jury verdict). A graduate of Indiana Law, Roger Pardeick, is also a member of this elite group.
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  • 4 One of the authors in our course readings points out the largely illusory difference between perception and reality because, at the end of the day, the perceptions of others (clients, colleagues, judges, etc.) decide our fate. See JAMES C. FREUND, LAWYERING: A REALISTIC GUIDE TO LEGAL PRACTICE 6 (1979) ("If there is one thing you learn in lawyering—as in the rest of life—it's that appearances rank only a shade behind reality in significance. ... So when I talk about matters of optics, it's not to suggest hypocritical role-playing for which you are ill-suited; rather, it's for the purpose of bringing appearances into line with realities.").
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  • 5 One of authors in our course readings points out the largely illusory difference between perception and reality because, at the end of the day, the perceptions of others (clients, colleagues, judges, etc.) decide our fate. See JAMES C. FREUND, LAWYERING: A REALISTIC GUIDE TO LEGAL PRACTICE 6 (1979) ("If there is one thing you learn in lawyering—as in the rest of life—it's that appearances rank only a shade behind reality in significance. ... So when I talk about matters of optics, it's not to suggest hypocritical role-playing for which you are ill-suited; rather, it's for the purpose of bringing appearances into line with realities.").
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  • 6 Students would be astonished at the doors that are opened (or shut) based upon the judgments you make of each other's character, commitment, and integrity. As a matter of cognitive science, early impressions are very powerful.
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  • 7 For those who spend time in alumni relations, you quickly realize that your relationship with your classmates often becomes one of your most valuable long term assets.
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  • 8 Note the date of the last Practice Setting Forum has been changed from March 26 to April 2 due to course scheduling constraints.
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