Want to fight professionalization? Start with FYL

BY DAN BOONIN

Every year, a quite a large number of students enter Harvard Law Sschool with the goal of using the law to effect social change and to improve the lives of others. By the end of our three- year stint, most of us have decided on the more “realistic” goal of working for a large corporate defense firm. This is a shame. One of the keys to understanding how this change comes about is an by analyzing the process by which aspiring lawyers are professionalized, by, among other means, the First Year Lawyering program.

Although the course description for FYL states that, “classes expose students to lawyer decision making and to questions of professional role and responsibility arising in that process,” we were asked to disregard notions of professional role and responsibility while competing in the first year Ames Moot Court Competition.

This year’s Section VI FYL Ames problem is a classic example of how students are routinely asked to leave their ethical and political commitments at the door when they put on their lawyering caps. The world we will create if the defendant, Ames Country Club, prevails is a world in which Americans can be denied access to community recreational opportunities solely because they suffer from epilepsy. Many of us find it morally repugnant to work toward such a world.

“No matter,” says HLS via the FYL program, “Your only commitment is to the client and the legal process! Leave all that mushy headed sentimentality at the door. You are lawyers now, not social critics.” But all arguments are not morally equivalent. There are not two sides, morally, to every issue. Our commitments should extend beyond our clients to a larger community. And our commitments also need to include being true to ourselves. A lawyer’s decision to represent a defendant such as Ames Country Club, to push the case to trial, and to make every possible argument on their behalf is itself a political and ethical decision. Perhaps it is a defensible decision, but we should recognize it as a decision, nonetheless.

We are not saying that FYL should not ask students to practice lawyering skills by role playing as counsel to client’s whose actions are objectionable. This type of role playing is no doubt valuable in teaching us our craft. What we are saying is that it is inappropriate for HLS to present an exercise such as the Kane case as an example of how, now that we are lawyers, we should see that there is never a right or wrong position, only arguments to be made and rebutted.

Particularly in light of recent events on campus, we should be disturbed by the off-handed inclusion of segregationist and discriminatory course materials and insensitive pedagogical approaches.

Perhaps even more disturbing than the version of professional lawyering propounded by FYL was the absence of any debate about what it means to be a professional as part of the class. This is especially troublesome when the stated purpose of FYL is to explore the responsibilities of a lawyer. Not once during the course did our lecturer acknowledge that a case such as the Ames problem raised any significant ethical issues. We were simply divided up and assigned, without comment, to represent the plaintiff or defendant.

Lastly, we do not doubt that if a student had approached the lecturer and explained that, for personal reasons, she was unable or unwilling to represent the defendant, that she would have been accommodated. This is beside the point. The burden should not be on the students to come forward and explain why they need special treatment; an exemption, as it were, from the hard-headed world where one represents power as a matter of course.

Top-tier law schools redirect a tremendous amount of potential away from the social good. In our view, FYL, through its message to students about professionalization, actively participates in this unfortunate redirection of energy. At the very least, FYL should be a space for questioning rather than reaffirming a conception of lawyering that requires the abandonment of one’s ethical and political commitments in one’s professional life.

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