“Whether to Go to the Supreme Court”

 Bringing a Real-Life Ethical Dilemma into the Classroom

Clark D. Cunningham

W. Lee Burge Professor of Law & Ethics

Georgia State University College of Law

P.O. Box 4037

Atlanta, GA 30302-4037

Phone: (404) 651-1242

Fax: (404) 651-2092

Email: cdcunningham@gsu.edu

Home Page: http://law.gsu.edu/ccunningham/

          My first experience in law teaching was teaching legal ethics as an adjunct professor from 1985-87 while practicing law; I taught both a traditional, large-enrollment required upper-level course several times and once co-taught an innovative, small-enrollment first year elective. However, during my first ten years of full-time teaching (1987-97) I only taught ethical issues in the context of clinical and practical skills courses. In 1998 I volunteered to begin teaching the required upper-level legal ethics course in hopes that what I had learned as a clinical teacher could be applied to a more traditional classroom setting. I decided to develop an innovative approach without using a published textbook, titling the course, “The Legal Profession: Heroes and Villains.”

          In designing this course, I was strongly influenced by a very thoughtful seminar paper I had received the prior year entitled “Hearing the Lawyer-Heros.” The student identified what he perceived to be “a deficiency” in law school education:

[I]t was chiefly on the faith that there were [heros] ... in the profession of law that lured me to law school even after five years of doing other things. ... [But] law school neither encourages nor facilitates a student in seeking out their own individual lawyer-heros, and the unfortunate result is that students do not hear what may be the most important voice in the language of the law.

          Reading this paper made me realize that the way I taught legal ethics in the past primarily presented students with lawyers who were villains – or careless fools – and, therefore, probably made students even more cynical about the practice of law after the course than before. I found myself wondering what the point was of forcing law students to take a course that increased an already troubling level of law-school-induced cynicism. So I decided to build my new course around real and fictional lawyers who were at least arguably heroic, and to discuss the ethical challenges they faced.

          The heart of the course is a series of in-class simulated client meetings that force the students to deal with issues of confidentiality, conflict of interest, and the division of control between lawyer and client. The simulations are paired with real life stories relating to the same issues. Thus, during the first exercise on confidentiality, students were also reading about the famous case of lawyers Frank Armani and Francis Belge who were reviled in their community for keeping confidential the fact that their client had murdered two girls and hidden their bodies. See Tom Alibrandi & Frank H. Armani, Privileged Information (1984). In between the second set of simulations – involving conflicts of interest in representing a corporation -- students read about Clarence Darrow’s struggles to balance his commitment to his clients and to the labor movement while initially representing a railroad company and later defending two union activists, whose guilty pleas devastated the labor union that was paying Darrow for their defense. Clarence Darrow, The Story of My Life 57 - 62, 172 - 185 (1932).

          The third simulation was based on the widely-publicized “Baby Jessica” case in which a University of Michigan law school clinic represented a couple who had attempted to adopt an infant only to face a court ruling that they must return the child two years later to the biological father, who had not known about the adoption proceedings. See Robby DeBoer, Losing Jessica (1994) (autobiographical account by the adoptive mother). In the second client meeting in this exercise students conducted a simulated counseling session with the adoptive father about whether to pursue the case to the U.S. Supreme Court after winning in the trial court only to be reversed by the Michigan Supreme Court. Prior to this simulation, we read and discussed a similar critical moment in the University of Mississippi desegregation case in which NAACP attorney Constance Baker Motley (later Chief Judge for the U.S. district court for the Southern District of New York) persuaded the plaintiff, James Meredith, to keep going in his law suit despite great personal risk. See Constance Baker Motley, Equal Justice Under Law 173-79 (1997) and James Meredith, Three Years in Mississippi (1966).

          In this third simulation I was able to “bring” the parents’ lawyer directly into the classroom. The first time I taught the “Baby Jessica” case, Suellyn Scarnecchia (then a clinical professor at the University of Michigan Law School, now dean at the University of New Mexica School of Law) agreed to come my law school and discuss the ethical decisions she confronted with my students. The day of her class visit I also recorded a one-on-one interview with her in which we spent considerable time discussing the critical moment when she advised her clients against pursuing the case further in the U.S. Supreme Court. Immediately after my current students re-enact this client discussion, we view in class the videotaped discussion with Scarnecchia. The students then write a paper comparing their simulated advice to the father with how Scarnecchia handled the situation.