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 Ethics
Annual 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
(1748-1832)
John Stuart Mill
(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 remember
that some things
legally right are not
morally 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 an
attorney is stitched out in
the dozens—hundreds—of
decisions that she makes
each 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 adversaries
do in law, strive mightily,
but eat and drink
as 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 order
Judge 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 mentoring
is in teaching young attorneys
to practice law well, it is far
more 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