[2.5.] Legal Ethics and Virtue Ethics.
Having given negative arguments against deontology and (both act and rule) utilitarianism as accounts of legal ethics, Milde here begins building his positive argument in support of virtue ethics as the best account of legal ethics.
As he has done in earlier in the paper, he focuses his investigation around cases where black letter law and professional codes turn out to be insufficient as moral guidelines: “hard cases in which the rules of professional conduct and the jurisprudence developed by the courts run out, or run into a dead end, or run into each other.” (55)
And he makes explicit a point that he has hinted at earlier in the article: in these difficult cases, “the lawyer becomes a moral agent who has the added responsibility of framing responses appropriate for the profession as well as for [himself].” (55)
· In other words, there is a sense in which a lawyer, making a decision in a hard case (like the Lake Pleasant Bodies Case), is serving as an example for other members of his profession.
· His duty is not simply to make the best possible decision for that case, but to behave in a manner that will serve as an appropriate model for other lawyers, as well.
Milde believes that virtue ethics provides the best account of this situation:
[I]f legal ethics is understood as a kind of virtue ethics, it would be possible to attach normative authority to certain practices and institutions that lawyers currently rely on, including some of the information-seeking behaviors discussed above. (55)
In other words, on the virtue ethics approach, some of the practices that lawyers actually do engage in already will serve as a guide to how lawyers should behave.
[2.5.1.] Aristotle and Eudaimonia.
According to Aristotle’s (384-322 BCE) Nichomachean Ethics, the goal of all human activity is eudaimonia. This Greek word is frequently translated as “happiness,” and in fact Milde translates it that way (for example, p.55)
But Aristotle had in mind something richer than a mere psychological state. A better translation might be “flourishing” or “well-being.”
But as Aristotle is aware, simply to say that all human activity is directed towards eudaimonia is not to say very much. So what is eudaimonia, according to Aristotle?
To answer this question, we need first to answer a more fundamental question: what is the function of “man,” i.e., what is the function of a human being?
Aristotle is assuming something that seems strange to modern ears, viz., that human beings have a function. Just like a hammer has a function (to pound nails), just like the eyes have a function (to see), and just like the flute-player has a function (to play the flute), a human being also has a function.
...just as for a flute-player, a sculptor, or an artist, and, in general, for all things that have a function or activity, the good and the ‘well’ is thought to reside in the function, so would it seem to be for man, if he has a function. Have the carpenter, then, and the tanner certain functions or activities, and has man none? Is he born without a function? Or as eye, hand, foot, and in general each of the parts evidently has a function, may one lay it down that man similarly has a function apart from all these? What then can this be? Life seems to be common even to plants, but we are seeking what is peculiar to man. Let us exclude, therefore, the life of nutrition and growth. Next there would be a life of perception, but it also seems to be common even to the horse, the ox, and every animal. 
Whatever the purpose of a human being is, it has to be something unique to us, a function that only human beings have. So it is not simply living (since plants do that, too), and it is not simply perceiving (since non-human animals do that).
There remains, then, an active life of the element that has a rational principle ... Now if the function of man is an activity of soul which follows or implies a rational principle, ... human good turns out to be activity of soul in accordance with virtue, and if there are more than one virtue, in accordance with the best and most complete. (Nic. Eth. 1.7, 1097b22-1098a20, trans. by W. D. Ross; this is a different translation that that quoted by Milde)
So the function of man is to engage in activity that is guided by reason. (In fact, Aristotle defined a human being as a rational animal.)
It follows that human good is rational activity in accord with virtue:
Why should we not call happy [eudaimon] the man who exercises his abilities according to the highest standards of virtue and excellence in a context which affords him sufficient resources and not merely for a brief moment but throughout his life?
[2.5.2.] “The Good Lawyer.”
Just as Aristotle hoped to derive an account of morality in general from an account of the function of human beings, Milde believes that we can derive legal ethics from an account of the function of lawyers: “it makes sense that a good lawyer (or physician or accountant or farmer) is one who performs the function of his/her profession, and does so in accordance with recognized standards of excellence.” (56)
But in order to know what the function of a lawyer is, we will need to know what the function of the legal system is. A complete account of legal ethics will need, among other things, an explanation of the function of the law and therefore a definition of “law.” [We will return to this point next time.]
For the moment, Milde points out a possible objection to the idea that we can derive legal ethics from an account of the function of lawyers:
[M]uch of what lawyers do, and are required to do, has little or nothing to do with morality. Some aspects of their work are purely technical, such as knowing how to draft a will or execute a title search. And though they can be praised or blamed for the way in which they handle these undertakings, this is not really a moral evaluation (unless, perhaps, their performance is incompetent enough to constitute malpractice). There is thus a danger that the term “good lawyer” will be applied to those who are simply technically competent, but who have never had to confront a morally complex question. The risk is that the honorific “good” will apply equivocally to both (merely) technically competent lawyers and those lawyers who make morally appropriate decisions. (56)
So “good lawyer” is ambiguous between:
· a lawyer who is technically competent, i.e., who can perform the tasks that it is the function of a lawyer to perform; and
· a lawyer who makes “morally appropriate decisions.”
But there is not necessarily any problem here… it is possible for a lawyer to be good in both senses, so long as fulfilling the technical requirements of her job does not require her to behave immorally.
[2.5.3.] “Habituation and Training.”
“[O]ne acquires the appropriate virtues for a given task ... through habituation and training...” (57)
Again, it is from the same causes and by the same means that every virtue is both produced and destroyed, and similarly every art; for it is from playing the lyre that both good and bad lyre-players are produced. And the corresponding statement is true of builders and of all the rest; men will be good or bad builders as a result of building well or badly. For if this were not so, there would have been no need of a teacher, but all men would have been born good or bad at their craft. This, then, is the case with the virtues also; by doing the acts that we do in our transactions with other men we become just or unjust, and by doing the acts that we do in the presence of danger, and being habituated to feel fear or confidence, we become brave or cowardly. ... Thus, in one word, states of character arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. It makes no small difference, then, whether we form habits of one kind or of another from our very youth; it makes a very great difference, or rather all the difference.
Milde believes that this Aristotelian claim about training and habituation applies to lawyers as well:
Mutatis mutandis [i.e., the necessary changes having been made], one acquires the virtues of the legal profession through professional practice. And clearly one has to learn these practices (and their attendant ‘habits’) from someone who both knows what they are and is capable of executing them. This process of modeling in order to transmit knowledge is the key to both professional and moral education. (57, emphases added)
[2.5.4.] Institutional Supports and Role Models.
Lawyers can receive the right sort of “practice” by relying on the institutional supports that are available to them. These things all “provide information regarding the dispositions and capacities required to be a lawyer ... [and] indicate what one has to do, how one has to be, in order to be a good lawyer.” (58) Lawyers
· are required to attend an accredited law school (a school that has been evaluated and approved by an accrediting organization);
· are required to pass the bar examination in the jurisdiction in which they will practice;
· are provided with codified moral guidelines, such as the ABA’s Model Rules, court rulings and the findings of disciplinary bodies; and
· (and most importantly for Milde’s virtue ethics approach) have access to “successful and honored members of the profession ... lawyers who attain senior positions in the profession, as senior partners, judges, or officers of the bar, assume the status of role models: in their actions, decisions, and pronouncements they are seen to be reconciling the often conflicting demands of the profession.” (58)
Milde recognizes that not all successful lawyers can serve as the role models that his virtue ethics approach requires:
· There are examples of successful lawyers who lack moral integrity (Milde could cite Mike Nifong here!).
· Some successful members of the profession, held up as role models, may have never been put in a position where they have to make a morally difficult decision, and so they have no experience that would justify looking to them as moral exemplars.
[2.5.5.] The Role of Reasons.
Milde believes that adequate moral training requires the trainee to “absorb the reasons upon which the exemplars themselves rely” (58, emphasis added) rather than simply emulating their behavior. It is not enough simply to do what they do. You have to understand why they do it, and then do it yourself for those same reasons.
It is not enough simply to do what another, senior lawyer has done. If forced to defend one’s action, it will not do simply to point out that a respected lawyer or judge did the same thing, or even to point out that a respected legal professional advised you to do the same thing. You will need to be able to provide some independent reasons for having made the choice you did: “moral agency requires, in the end, that one take responsibility for one’s actions and decisions. Thus, at the least, one will have to reproduce (and be able to defend) the rationale behind the action.” (59)
Those reasons will usually be either utilitarian (they do it in order to create good consequences) or deontological (because they recognize some pre-existing duty or obligation).
· In this way his Aristotelian virtue ethics approach “allows for a principled accommodation of both deontological and consequentialist perspectives. Each can be assigned a role in the process of education, habituation, and decision making.” (58)
[2.5.6.] The Need for a Definition of “Law.”
Milde acknowledges that so far, his account of legal virtue ethics is somewhat lacking in content. For example, he has not yet told us what the specific virtues of legal ethics are.
Milde says that in order to answer that sort of question and thereby flesh out legal virtue ethics, we must first get clear on the function of the law.
And to do this we need to have in hand a definition of “law.” What is a law? What makes given rule a law rather than simply a rule? What makes a system of rules a legal system? But there are different ways of defining law, as we will see...
Stopping point for Monday August 23. For next time, finish reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.60-64).
 This and the following passages are from Aristotle, Nicomachean Ethics 1.10, 1101a14-16, trans. Jonathan Lear, in Lear, Aristotle: The Desire to Understand, p.155; emphasis added. This passage quoted in part by Milde at p.55.
 Nichomachean Ethics 2.1, 1103b7-25, emphases added. Quoted in part by Milde at 57.
 There are five law schools in Georgia accredited by the American Bar Association. Two are public (UGA, GSU) and three are private (Emory, Mercer and John Marshall). Until 2005, John Marshall was accredited only by the State Bar of Georgia. This limited their graduates’ ability to qualify for federal financial aid and to apply to practice law in states other than Georgia. But in 2005 the school won ABA accreditation. “John Marshall Law School Wins Case for Accreditation,” Atlanta Business Chronicle, February 15, 2005, URL = < http://atlanta.bizjournals.com/atlanta/stories/2005/02/14/daily19.html >, retrieved March 26, 2009.
 To practice law in the state of Georgia, you must pass a bar examination that is administered by the Office of Bar Admissions, an administrative arm of the Supreme Court of Georgia: http://www.gabaradmissions.org/ .
 In making this point, Milde uses the expression “moral luck” to refer to what happens when someone is fortunate enough never to have to face a hard moral dilemma. But in general ethicists use “moral luck” to mean something very different from this: it is what happens “when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control.” Dana K. Nelkin, “Moral Luck,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2008/entries/moral-luck/>.
This page last updated 8/23/2010.
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