During the Conference on Psychology and Lawyering that Professor Jean Sternlight hosted at the William S. Boyd School of Law a few years ago, my friend Professor Nancy Rapoport and I spoke about the psychology of legal ethics. Drawing on my humanities background and her social science background, we discussed the importance of understanding the incentives that encourage lawyers to behave in certain ways. As we prepared for the conference and made our presentations, we realized that not only do the incentives that organizations develop—intentionally (through policies and procedures) or inadvertently (through the unintended consequences of those policies and procedures)—have profound effects on behavior, but that the classical concept of “virtue”—as the development of habits that shape character—can help people interact with those incentives. So we set out to explore the concept of “virtue” as it relates to how lawyers bill their clients. That exploration culminated in an article, “Virtuous Billing.” But I had been interested in the larger topic of “virtue in the professions” for several years (and remain so today) and believed that our article did not exhaust the generative possibilities of “virtue” as a touchstone for separating professionalism from self-interest. To that end, in what follows here and in future installments of this series, I will yoke my earlier thoughts (as helpfully edited by Nancy!) about a classical understanding of virtue to a contemporary conception of professionalism as interpretation.
Most everyone would agree, I think, that there are things about the practice of law that make it meaningfully different from other occupations and that there are things about law firms that—at least traditionally—make them meaningfully different from other organizational forms. These differences manifest in two ways that are important to our discussion. First, practicing law both ethically and with skill requires lawyers to develop and maintain law-specific habits of mind. Second, law firms mature into unique cultures that—depending on the shape and substance of that culture—either impede or promote the virtues congenial to those salutary law-specific habits of mind.
Over 50 years ago, C.P. Snow examined—and decried—the rise of what he called the “two cultures.” Snow used this metaphor to capture what he saw as an inability to communicate between—to comprehend across, really—communities of scientists and communities of literary intellectuals. His two-culture metaphor seems basically right to me, and I think that it may be useful to frame our discussion of virtue with the notion of “culture” in the Snowian sense of responding alike to a problem, situation or subject “without thinking about it.” By way of preview, I’ll posit that two “cultural” obstacles stand in the way of “virtue” in the legal profession: first, separate cultures have grown up around legal education and legal practice; and second, legal practice itself has migrated from one culture (professionalism) to another (commerce). Each of these divergences is antithetical to the notion of virtue for two reasons: first, because the legal education/legal practice divide has engendered mutual suspicion between enterprises that should operate in tandem; and second, because the profession/commerce migration has forced an attendant focus from the internal goods of legal practice (being a skilled lawyer) to the external goods of legal practice (making money and enhancing one’s prestige). But before moving to specifics, we need to pause and consider what virtues should obtain in the context of law.
In heroic societies (think of the Iliad or Beowulf), virtues and roles were inseparable, and the concept of virtue coincided with the notion of excellence (e.g., a great runner displays excellence of the feet). Not surprisingly, given the tribal and warlike nature of heroic societies, courage was considered to be a high virtue—one tangled up with notions of loyalty, kinship and success. By the time of Aristotle, the concept of one’s “role” in a culture gave way to the importance of the polis (i.e., the city-state form of social structure), the vestiges of which still exist in institutions dedicated to the common good (e.g., hospitals, philanthropic organizations and, one could argue once upon a time, law firms). Accordingly, values like judgment, friendship and justice emerged as important institutional virtues. It’s not surprising, then, that we still find these virtues itemized in general discussions of virtues in all the professions. But law—if not quite an autonomous discipline—also has a particular telos, and we must accordingly attend to law’s own goals if we are to identify virtues that facilitate their attainment.
To help us sort out what virtues should obtain in the practice of law, it’s helpful to consider the concept of a “practice” that Alasdair MacIntyre develops in his “After Virtue.” There, MacIntyre proposes a complicated definition that is perhaps better substituted with the contrasting examples he offers: tic-tac-toe is not a practice, chess is; throwing a ball—even with skill—is not a practice, football is; brick-laying is not a practice, architecture is. By these lights, we can safely categorize “lawyer work” as a practice.
MacIntyre goes on to identify two types of goods associated with a practice. The first are “externally and contingently attached” to practices “by the accidents of social circumstance.” That is, social context and its attendant modes of valuation determine whether one will achieve fame, fortune or prestige from playing chess or football or from designing buildings or curing diseases. These goods are external because there are multiple paths to their attainment—for example, one can achieve fortune through not only a myriad of practices but through an accident of birth, a roll of the dice or a great train robbery. This is to be contrasted with the goods internal to a particular practice, namely, “those goods (1) that we can specify only in terms of or with examples drawn from the practice and (2) that can only be recognized by the experience of participating in the practice in question.” As a consequence, MacIntyre states, “Those who lack the relevant experience are incompetent thereby as judges of internal goods.” This is a crucial point, and I’ll come back to it.
What, then, are the virtues associated with practices? To get us started down this path, MacIntyre suggests a tentative definition of a virtue: “A virtue is an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods.” He goes on to name “justice, courage and truthfulness” as common virtues. Not surprisingly, these virtues show up in most discussions of legal virtue, with “justice” occupying the place of preeminence and rising to the level of the telos for the whole enterprise. To this list, legal commentators often add things like prudence, compassion and wisdom.
With this backcloth stitched into place, we’ll return next time to the twin cultural obstacles to identifying virtue in law: the divide between legal education and law practice, on the one hand, and within legal practice, on the other.
Randy D. Gordon is the managing partner of the Dallas and Fort Worth offices of Duane Morris LLP. He is executive professor of law and history at Texas A&M University. His new book project, “The Performance of Law: Everyday Lawyering at the Intersection of Advocacy and Imagination,” from which this series is partially excerpted, was recently published by Routledge.
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