Hippocrates

April 17th, 2016 / By Deborah J. Merritt

In a forthcoming article, I discuss the ethical duty that professionals have to educate new members of their profession. The ancient Hippocratic oath recognized this duty, commanding all physicians “to give a share of precepts and oral instruction and all the other learning . . . to pupils who have signed the covenant.” Contemporary versions of the oath enforce a similar obligation, while moral and economic principles support the existence of this duty.

Surprisingly, the ABA Model Rules of Professional Conduct do not recognize this duty among lawyers. This is a worrisome flaw. Without an established duty to educate new lawyers, our profession cannot effectively serve clients. Nor can we justify our status as professionals. Professions are communities rather than mere occupations–and an essential feature of those communities is their commitment to ongoing education.

Implications

What does a duty to educate mean for practitioners and legal educators? It means that lawyers, like doctors, have an obligation to devote some of their time to educating new practitioners. “Education” isn’t simply finding a task that new lawyers can perform and then billing clients for that performance. Education means helping new professionals master the knowledge, skills, and business practices they need for success–even when no client pays the bill.

Education also means that senior lawyers create their own competitors. By sharing the secrets of their success, experienced lawyers risk losing business to their junior colleagues. A duty to educate, therefore, imposes two costs on senior professionals: loss of billable time and loss of competitive edge.

Why would any business person incur these costs? Lawyers sell their time and expertise: Why would they give away either of these assets for free? They wouldn’t, absent a professional obligation to do so.

This is one of the differences between a business and a profession. Professionals assume costs that they would not incur in a free market. In return, the profession receives an exclusive right to offer defined services. That exclusivity raises prices and compensates the profession for obligations like the duty to educate.

In law, we’ve lost sight of this professional bargain. Firms train new lawyers only when they believe the investment will generate profits. Solo practitioners shy away from sharing their wisdom with newcomers, lest they compromise an already shaky practice. Commitments to education seem increasingly rare in law practice today.

Solutions

Is it possible to revive the duty to educate among practicing lawyers? I’m pessimistic. Partners at the largest law firms still earn handsome salaries; in theory, they could easily afford to reduce their billable hours and devote more time to educating new lawyers. In practice, however, the fierce competition for profits per partner seems unlikely to abate.

In other parts of our profession, profit margins are already thinner than during the late twentieth century. Some lawyers still mentor junior colleagues quite generously, but others are reluctant to yield any of their billable time or expertise to newcomers.

This stand-off, for better or worse, contributes to the decline of our professional status. As lawyers increasingly act like free-market competitors, it is hard to justify the special privileges they receive. Why should lawyers reap an economic premium from professional licenses when they don’t shoulder the burdens that accompany those licenses?

What About Law Schools?

Law schools play a key role in educating new lawyers. In my article, I discuss the relationship between law schools and the profession’s duty to educate new lawyers. I’ll explore some of those ideas in a future post as well: Law schools are not performing as well as they should in carrying out their assigned role.

Even the most effective, responsive law schools, however, cannot graduate fully formed professionals. Professional judgment, skills, and knowledge develop over a lifetime; they require an ecosystem that supports their development.