Virtue Ethics, Earnestness, and the Deciding Lawyer:

Human Flourishing in a Legal Community

Derived from Material Originally Presented as:

Mart Vogel Lecture on Professionalism and Legal EthicsAnnual Meeting, State Bar Association of North Dakota

(June 17, 2011)

Michael S. McGinniss

Assistant Professor

University of North Dakota School of Law

I. THE ETHICAL POSITION OF THE LAWYER

A. Moral Character & Duties to Clients

“Can a good lawyer be a good person?”

I. THE ETHICAL POSITION OF THE LAWYER

B. The Temptations of Authority & Agency

Objectives v. Means

Authority – Risk of Moral Domination

Agency – Risk of Moral Detachment

I. THE ETHICAL POSITION OF THE LAWYER

C. The Limits of Role-Based Legal Ethics

“I can’t live one way in town and another way in my home.”--Atticus Finch in To Kill a Mockingbird

I. THE ETHICAL POSITION OF THE LAWYER

C. The Limits of Role-Based Legal Ethics

“The Victorious Lawyer”

“The Virtuous Lawyer”

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing

Aristotle(384-322 B.C.)

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing

St. Thomas Aquinas

(1224-1274)

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing

Aristotle(384-322 B.C.)

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

Consequentialism (Utilitarian Approaches)

Jeremy Bentham John Stuart Mill

(1748-1832) (1806-1873)

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

Deontology (Duty/Rule-Based Approaches)

Immanuel Kant

(1724-1804)

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

B. Duty or Virtue? (Or Both?)

The Adversary Ethic

Aristotle: Justice is the “complete virtue.”

Virtuous lawyer—uses rules (the law) to seek justice for the client

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

B. Duty or Virtue? (Or Both?)

Some virtues for the practice of law:

Balance Courage

Idealism Compassion

Creativity Energy

Discipline Perseverance

Honesty

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

B. Duty or Virtue? (Or Both?)

Aristotle: phronēsis (an intellectual virtue)

Translated as “prudence,”

or “practical wisdom”

Obtained through experience with virtue.

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

B. Duty or Virtue? (Or Both?)

The Unifying Virtue of Integrity:

Wholeness/Constancy

Fortitude to resist ethical invasions

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

C. Good Habits: Forming Virtuous Character for the Practice of Law

Aristotle: The moral virtues are formed by habit.

We learn to be virtuous by

acting virtuously.

II. VIRTUE ETHICS AND THE PRACTICE OF LAW

C. Good Habits: Forming Virtuous Character for the Practice of Law

Aristotle: Because the student of virtue lacks experience, it is important to learn virtue by modeling one’s actions after those of others who possess practical wisdom.

III. EARNESTNESS AND THE PRACTICE OF LAW

A. Kierkegaard’s Ethics of Decision

Søren Kierkegaard

(1813-1855)

III. EARNESTNESS AND THE PRACTICE OF LAW

B. Earnestness: Engaging the Heart and Avoiding Self-Deception

Kierkegaard: alvorlighed (Danish)

Translated “earnestness”

a virtue of the WILL

III. EARNESTNESS AND THE PRACTICE OF LAW

B. Earnestness: Engaging the Heart and Avoiding Self-Deception

Kierkegaard: Earnestness

Engaging the self wholeheartedly

Acting with first-personal freedom of WILL

III. EARNESTNESS AND THE PRACTICE OF LAW

B. Earnestness: Engaging the Heart and Avoiding Self-Deception

Avoiding self-deception: Ethical wrongdoing results when we talk ourselves out of what we know to be the moral course of action.

It is a failure of WILL.

III. EARNESTNESS AND THE PRACTICE OF LAW

C. Professional Responsibility as Personal Responsibility

Kierkegaard: “Subjectivity,” “existence,” and “choice” relate to character, but with passionate awareness of our concreteness, finitude, and inwardness of individual existence.

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

“When lawyers are glibly loyal as part of ‘doing their job,’ they risk corruption. They forego the personal engagement that characterizes an integral approach to decision-making. ‘Am I the sort of person who could do this?’ and ‘Could I face the mirror comfortably?’ are questions crucial to moral identity that lawyers may suppress.”

Reed Elizabeth Loder, Integrity and Epistemic Passion, 77 NOTRE DAME L. REV. 841 (2002).

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

A. First-Personal Decision Making: Becoming a Virtuous Lawyer

What is “first-personal decision making?”

Don’t just ask, “May a lawyer do this?”….

Ask yourself, “Should I do this?”

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

B. Integrity: A Unifying Virtue for the Practice of Law

Integrity: Wholeness

Stability of character

Constancy and “Truth To” Oneself

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

B. Integrity: A Unifying Virtue for the Practice of Law

“I am not bound to win,

but I am bound to be

true. I am not bound to

Succeed, but I am bound

to live up to what light

I have.” Abraham Lincoln

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

B. Integrity: A Unifying Virtue for the Practice of Law

“You must rememberthat some things legally right are notmorally right.”

Abraham Lincoln

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

C. Repetition of Ethical Action: Remaining a Virtuous Lawyer

IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME?

C. Repetition of Ethical Action: Remaining a Virtuous Lawyer

“The moral fabric of anattorney is stitched out inthe dozens—hundreds—ofdecisions that she makeseach day.”

Judge Patrick J. Schiltz

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

Law is a collective, community-oriented enterprise.

Each legal community has a distinct ethical and moral climate.

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

A. Living in Legal Community with “Friend and Foe”

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

A. Living in Legal Community with “Friend and Foe”

“[D]o as adversariesdo in law, strive mightily,but eat and drinkas friends.”The Taming of the Shrew,

Act 1, Scene 2 William Shakespeare

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

A. Living in Legal Community with “Friend and Foe”

Jayhawk Capital Mgt. v. LSB Indus. (D. Ka.)

April 12, 2011 orderJudge Eric F. Melgren

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

A. Living in Legal Community with “Friend and Foe”

“Defendants’ Motion [for Continuance] is GRANTED.”

“The Ermans are CONGRATULATED.”

“IT IS SO ORDERED.”

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing

Where should a law student or lawyer look for practical wisdom to learn how to become and remain a virtuous lawyer?

To the good mentor.

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing

“Whether law is practiced

ethically in any particular

community depends not

upon the community’s

formal rules, but upon

its culture.” Judge Patrick J. Schiltz

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing

“A novice attorney learns

the value of a mentor either

by having one or by

not having one.”

Judge Patrick J. Schiltz

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing

“[A]s important as mentoringis in teaching young attorneysto practice law well, it is farmore important in teaching them to practice law ethically.”

Judge Patrick J. Schiltz

V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME?

B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing

The flourishing of a legal community depends on how well-anchored its members are to each other.

CONCLUSION