The Miseducation of Public Citizens
Written By: Etienne C. Toussaint
The American Bar Association Model Rules of Professional Conduct calls upon lawyers, as public citizens, to embrace a special responsibility for the quality of justice in the legal profession and in society. Yet, some law professors have historically adopted a formalistic and doctrinally neutral approach to law teaching that elides critical perspectives of law, avoids the intersection of law and politics, and tends to overlook the way law can construct the very social injustices that it seeks to contain. The objective, apolitical, and so-called “colorblind” jurisprudential stance in many law classrooms inflicts intellectual violence upon law students who discover a legal doctrine in conflict with their own lived experiences, yet who feel silenced and unprepared to reckon with the moral legitimacy of unjust laws. Perhaps as a result, in recent years, law schools have begun to rethink legal education altogether, devising anti-racist curricula, professional identity trainings, and novel experiential learning programs to produce a new generation of critically conscious lawyers for the crises of our modern age.
Building upon such efforts, alongside recent scholarship in legal education and philosophical legal ethics, this Essay proposes foundational pedagogical principles to teach public citizenship lawyering. This Essay defines public citizenship lawyering as a democratic conception of professional responsibility whereby lawyers engage in routine critique of their lawyering practice through the lens of justice as a moral virtue. This pedagogy finds normative grounding in the ABA Model Rules based upon the contention that a skewed vision of professional lawyering identity has hindered a justice-oriented interpretation of the lawyer’s public citizen charge. Specifically, this Essay articulates four pedagogical principles:
(1) deconstructive framing, which guides the law professor in teaching the lawyer’s ethical duty of candor; (2) ethical reposturing, which guides the law professor in teaching the lawyer’s ethical duty of competence and professional judgment; (3) reconstructive ordering, which guides the law professor in teaching the lawyer’s ethical duty to improve the law; and (4) liberatory lawyering, which guides the law professor in teaching the lawyer’s ethical duty to assist the client and others in gaining competence. Collectively, these principles assert a counter-cultural vision of practice readiness that empowers law students to affirmatively challenge social and economic injustice in the legal profession and the rule of law. More than exalting a democratic conception of professional lawyering identity, these principles affirm the legal academy as law’s laboratory for progressive social change.