Abstract
The concept of "professional conscience" is a step in the same direction as the internalization of professionalism principles 2 through 5 proposed in this essay, but principles 2 through 5 provide a clearer definition of the specific elements of an ethical professional identity. The separation of "personal conscience" and "professional conscience" also does not recognize the interrelationship and synergy between personal conscience and the other principles of professionalism. Professor Robert Kegan's theory of professional identity formation development articulates a progression from a personal conscience that is self-centered, to one that is fully integrated with the principles of the profession, and freely chosen. It is about self-authoring one's identity as a professional, and choosing the guiding values that are at the core of both personal and professional identity.83 Most important, defining personal conscience separate from professional conscience will socialize law students and lawyers to live professional lives where personal conscience is relevant in only a small subset of professional decisions. Socialization where students and lawyers see that an ethical professional identity builds on and further develops the personal conscience they brought into the profession and are developing throughout life will take much greater advantage of both the existing personal moral development that a law student brings to legal education or the subsequent personal moral development of a practicing lawyer. For these reasons, "personal conscience" and "personal conscience in a professional context" seem more useful descriptive terms rather than "personal conscience" and "professional conscience." 84 The greatest concern about "personal conscience in a professional context" as the foundation of professionalism is the fear that a lawyer's personal conscience will limit client autonomy and client equal access to justice.85 The lawyer's personal conscience will trump client choices that are lawful. The central point of "personal conscience in a professional context" is that the lawyer's personal conscience is now informed and guided also by the role morality of the lawyer's function in the justice system. That role morality calls on the lawyer who accepts a representation to honor principles of client autonomy and equal access to justice. In the counseling role, for example, the lawyer's duty is to help the client think through the client's best interests in the situation^ro/w the client's shoes including the client's morality. The lawyer is not to impose the lawyer's morality on the client. This duty includes fairly and completely presenting the law applicable to the client's situation. However a lawyer who develops over a career in any of the capacities of the Four Component Model should be a better counselor for all clients and should better understand adversaries. For example, a lawyer whose own moral reasoning is at an early stage of development will be limited in his or her ability to counsel a client who is at a more developed stage of moral reasoning. The lawyer simply will not understand the client well. If the reverse is true, the lawyer will understand the moral reasoning of the client and can help the client think through the client's best interests from the client's shoes. 55. The MacCrate Report, the Haynsworth Report, the CCJ National Action Plan, and the Preamble to the Model Rules of Professional Conduct emphasize that a lawyer must continue to grow in personal conscience. The MacCrate Report emphasizes that the primary sources of ethical rules include, "A lawyer's personal sense of morality." MacCrate Report, supra note 34, at 204. The Haynsworth Report includes both an essential characteristic that a lawyer must demonstrate ethical conduct and integrity, and a supportive element that a lawyer should develop the capacity for self-scrutiny and for moral dialogue with clients and other individuals involved in the justice system. Haynsworth Report, supra note 2, at 6-7. The National Action Plan defines professionalism as a personal characteristic that each lawyer must cultivate in him or herself. Action Plan, supra note 2, at 6. The Preamble specifically provides that a lawyer is also guided by personal conscience and sensitive professional and moral judgment. Model Rules of Prof'l Conduct Preamble ¶¶ 7, 9 (2007). The Preamble to the ABA Model Code of Professional Responsibility is also explicit. "Each lawyer must find within his [or her] own conscience the touchstone against which to test the extent to which actions should rise above minimum standards." MODEL CODE OF PROF'L RESPONSIBILITY PREAMBLE ¶ 4 (1969). The introduction to the Restatement of the Law Third, The Law Governing Lawyers, provides, "other constraints, such as ideals and habits of morality, will often guide the conduct of a good person who also aspires to serve as an honorable public-spirited lawyer, and much more powerfully and pervasively than merely legal obligations. A good lawyer is also guided by ideals of professionalism and by an understanding of sound professional practice. Extensive consideration of such non-legal factors is not undertaken here. However they have obvious significance in a good lawyer's life and in the self-concept of the profession." 1 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 3 (2000). This list of five principles of professionalism is a revision of an earlier list of seven principles of professionalism that appeared in Neil Hamilton and Lisa Brabbit, Fostering Professionalism Through Mentoring, 57 J. OF LEGAL EDUC. 102, 103-04 ((2007). 90. Model Rules of Prof'l Conduct Preamble ¶ 2 ("As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system."), *i 8 ("[W]hen an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done."), *i 9 ("Lhese principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system."). Paragraph 1 of the Model Rules' Preamble makes clear that the lawyer is to hold in tension the roles of "a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice." Id. *i 1. See MacCrate Report, supra note 33, at 205. Zealous advocacy focuses on maximizing client autonomy to achieve any lawful client objective through legally permissible means. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-1 (1969).