Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer's Aspirational Drive to an Ethical PracticeExpressO (2009)
AbstractMany scholars have criticized the Model Rules for omitting the aspirational ethic of earlier ABA codes, leaving only the minimum, mandatory regulations for conduct. Our article BEYOND THE MODEL RULES: ARISTOTLE, LINCOLN, AND THE LAWYER’S ASPIRATIONAL DRIVE TO AN ETHICAL PRACTICE, offers a new approach to dealing with this "aspirational void" created by the Model Rules, yet it does not engage in the useful yet typical debates regarding this problem, including the need for greater emphasis on ethics in law schools, reform of the ABA, reform of the Model Rules, or the need for a so called professional movement. Rather, this article responds to the aspirational void by considering the ideas of Aristotle and the law practice of Abraham Lincoln. Aristotle believed that ethical conduct cannot be ultimately based in any creed or code, whether mandatory or voluntary, but must be taught through the example of ethical role models. Aristotle considered role models much more than inspirational. Due to the ambiguities and complexities of real-life events, ethical conduct cannot be prescribed in any set of rules or distilled into certain abstract principles. It can only be learned by studying the actions of ethical persons and by patterning personal behavior after those judged by society to be ethical. This article contrasts Aristotle’s notion of the centrality of ethical role models to the teaching of ethical behavior with the legal profession’s current reliance on Model Rules composed of catalogued, non-aspirational dos and don’ts. It then presents Abraham Lincoln as an example of an Aristotelian role model for lawyers. While Lincoln’s life as a lawyer provides a colorful backdrop for understanding the man who would become one of our greatest Presidents, there is value for lawyers in seeing Lincoln solely as a lawyer. What emerges is a portrait of a young 19th century lawyer, dealing with the problems and challenges of developing and running a legal practice that remain recognizable by contemporary lawyers. Through his writings and records of his actions and statements, we learn that Lincoln strove to conduct himself as a lawyer in accordance with lofty goals of integrity and dedication, but recognized the practical limitations and demands of law as a competitive business enterprise. From the start of his legal career, Lincoln grew through determination and hard work from a country lawyer concerned with routine rural matters to represent some of the largest industrial interests and to confront the thorniest social issues of his day. Along the way, he dealt with a legal market burdened by too many lawyers, clients who wouldn’t pay their bills, partners, the demands a busy practice makes on time and health and the tedious aspects of a profession that cherishes precision. Stripped of mythology, the portrait of Lincoln also becomes supremely human. Lincoln as a lawyer experienced failure and had to deal with his personal frailty and shortcomings. He somehow managed to overcame all those obstacles to become a successful attorney and to simultaneously cultivate a reputation for fairness and ethical conduct. What makes Lincoln most notable to the authors is that he accomplished his achievements without Model Rules, Canons or ABA regulations. The personal principles by which he lived, his values and his ethical conduct make Lincoln an example for any lawyer, young or old, seeking a role model after which to pattern themselves. This article is timely for two reasons. First, the law practice of Lincoln has only recently come into full focus, thanks to a recent uncovering of Lincoln's legal documents. Although a few minor works have been dedicated to Lincoln's legal career following this discovery, the details of this career, and especially its relation to contemporary legal ethics, remains an untapped source of scholarship and reflection. Second, we are on the verge of the Bicentennial celebration of Lincoln's presidency, and we will soon see a flurry of renewed interest in Lincoln. Although this article was not written and submitted with the Bicentennial in mind, it is a very fortunate, timely coincidence. If we, the co-authors of this article, were to see this article through the eyes of an editor, we would say it represents a forest-through-the-trees, macro perspective on contemporary legal ethics and the Model Rules, a perspective that is often missing from contemporary debates.
- Model Rules
Publication DateFebruary 21, 2009
Citation InformationBillie J. Ellis and William T. Ellis. "Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer's Aspirational Drive to an Ethical Practice" ExpressO (2009)
Available at: http://works.bepress.com/billie_ellis/1/