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Bar News - April 15, 2011

What Is Truth? Ethics, Morals and the Practice of Law


Prof. Kimberly Kirkland in her office at the UNH School of Law in Concord.
Kimberly Kirkland, professor of law at the University of New Hampshire School of Law in Concord, teaches, among other subjects, a seminar entitled, "Ethics, Morals and the Practice of Law." Kirkland, who litigated for ten years, first at Goulston & Storrs in Boston and later at Upton, Sanders and Smith in Concord, joined the faculty of the law school in 2000, after serving two semesters as an adjunct professor.

In addition to her classroom work, Kirkland has just completed a chapter for a forthcoming book on ethics, Lawyers in Practice: Ethical Decision Making in Context, soon to be published by the University of Chicago Press. Her scholarship has already been well-established with several previously published works, including Ethics in Large Law Firms: The Principle of Pragmatism.

In a recent interview, Bar News asked Prof. Kirkland for further details about her work and her ideas about teaching ethics to law students.

Could you tell us a something more about this forthcoming book, Lawyers in Practice, and your specific contribution to it?
The book examines lawyers’ ethics in various practice areas, such as family law, intellectual property, employment law, the plaintiff’s bar, etc. The book begins with the premise that lawyers’ ethics are shaped by context—by both the type of law they practice and by the types of organizations in which they work. All of the authors who were asked to contribute do empirical research on the legal profession. I have studied large firm lawyers and so in my chapter I was asked to examine the ethical worldview of corporate litigators. Specifically, I look at corporate litigators and their conceptions of their responsibility to truth. For instance, how do lawyers in large law firms understand their obligations to truth when preparing witnesses for deposition or trial. The chapter is titled, "The Ethics of Constructing the Truth – a Corporate Litigator’s Approach."

What prompted you to become involved in this kind of research to begin with?
One December, in my second or third year of teaching, I was grading 150 Civil Procedure exams and after 75 or 80 exams found myself scanning my bookshelf for something to read to break up the grading and I saw a book written by a favorite college professor of mine, Bob Jackall, about the moral worldviews of corporate managers. My professor had studied corporate managers in three large corporations and some of what he found resonated with my experience practicing in a large law firm. I began to think about how much of the way we, as lawyers, see the world and understand what it means to be ethical is shaped by our work environments.

My experience working as a litigator in a large law firm was very different from my experience practicing in a small firm. I wanted to learn more. I had never done any empirical research, so I went back to Bob Jackall and asked him whether he thought it was something I could do. He was terrifically encouraging. He really taught me how to do qualitative empirical research.

You speak of "constructing" truth. How is an attorney involved in developing the "truth" in a particular case? And how does an attorney decide what the truth is?
In litigation, whether corporate or otherwise, you learn to approach the parties’ stories with a degree of skepticism….You learn not to accept everything your client, other witnesses and even documents tell you, at face value. It is uncommon for clients and other witnesses to have all of the facts right. Your client may have forgotten some of what happened. Alternatively, reliable witnesses or documents created at the time of the events in question may contradict your client’s version of events. We know how even simple accounts of a traffic accident can vary greatly from person to person, even when those witnesses have no stake in the outcome of a lawsuit.

The litigator learns to be skeptical and wade through the varying accounts in an effort to reconstruct the truth. In my chapter I examine corporate litigators’ approaches to this process. I find that although corporate litigators are skeptical of their clients, opposing parties and witnesses, they do not tend to be very skeptical of themselves. To act ethically in the process of reconstructing truth, corporate litigators need to balance their duty to advocate for their client’s ends and their obligation to avoid obstructing the truth-seeking function of the process. Certainly, pressure to please superiors and clients has the potential to skew the way they strike this balance, but corporate litigators rarely ask themselves whether and how the incentives and pressures created within large law firms might be influencing their judgments.

How has your background as a practicing attorney contributed to your present work, both in the classroom and in your research?
I went to Goulston & Storrs in Boston right after earning my JD at Northeastern University School of Law. When I came to New Hampshire and joined Upton, Sanders and Smith, I did mostly medical malpractice and employment law – and gained experience, especially in the courtroom, in representing both sides – plaintiffs and defendants.

Those experiences were vital to a thorough understanding of litigation and also to my ability to carry that understanding over into a classroom setting. I love teaching – and I really like the scholarly aspect of the position, too – the research that goes along with the writing.

Tell us about your next research project, which will examine how young lawyers develop judgment – and how the size of the law firm can impact the learning curve?
In my next research project I hope to investigate how the degree of autonomy a young lawyer is given affects the development of judgment. In very large law firms, of course, young lawyers do not always get much of a chance to develop their own skills at making judgments. They are usually part of a big group and makes relatively few decisions. My hypothesis is that a lawyer must be given responsibility for making some decisions on his or her own in order to develop good judgment.

The question of course is how much autonomy do young lawyers need and how soon. In some smaller law firms and prosecutor’s offices, young lawyers are thrown in at the deep end with little or no guidance. They are forced to make judgments early in their careers, but the question is: "Do they develop good judgment?"

My hypothesis is that you have to be given a good bit of autonomy, you have to be the "last word" and you have to make mistakes to develop good judgment. I hope to test this hypothesis. For this project, I plan to follow young lawyers right out of law school and into the workplace; some of them will have more – and some less – autonomy.

How do you help your students develop a strong sense of ethics?
I consider integrity a skill that you develop by reflecting on past behaviors. I ask my students to write about their own experiences and how they have dealt with various moral questions. By examining how they arrived at decisions, students are able to recognize one of the greatest impediments to ethical behavior: self-deception. As lawyers, they will need to clearly recognize the many pressures, such as client expectations and corporate cultures, that are influencing their decisions and that may, in some cases, encourage them to engage in unethical conduct.

The ethics rules leave significant room for lawyers to exercise discretion about how they want to practice law. Within the bounds of the ethics rules lawyers can bring who they are and what they personally believe about what it means to be an ethical lawyer to their practices. I encourage students to talk about and try to identify for themselves the values they want to bring to their practices. We do this in the context of very real world scenarios where students must consider their relationships with clients and colleagues, their financial security and their own personal values.

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