Michael S. McGinniss Assistant Professor University of North Dakota School of Law

1. Virtue Ethics, Earnestness, and the Deciding Lawyer:Human Flourishing in a Legal Community Derived from Material Originally Presented as:Mart Vogel Lecture on Professionalism and Legal EthicsAnnual Meeting, State Bar Association of North Dakota(June 17, 2011) Michael S. McGinniss Assistant Professor University of North Dakota School of Law

2. I. THE ETHICAL POSITION OF THE LAWYER A. Moral Character & Duties to Clients “Can a good lawyer be a good person?”

3. I. THE ETHICAL POSITION OF THE LAWYER B. The Temptations of Authority & Agency Objectives v. Means Authority – Risk of Moral Domination Agency – Risk of Moral Detachment

4. I. THE ETHICAL POSITION OF THE LAWYER C. The Limits of Role-Based Legal Ethics “I can’t live one way in town and another way in my home.”--Atticus Finch in To Kill a Mockingbird

5. I. THE ETHICAL POSITION OF THE LAWYER C. The Limits of Role-Based Legal Ethics “The Victorious Lawyer” “The Virtuous Lawyer”

6. II. VIRTUE ETHICS AND THE PRACTICE OF LAW

7. II. VIRTUE ETHICS AND THE PRACTICE OF LAW A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing Aristotle (384-322 B.C.)

8. II. VIRTUE ETHICS AND THE PRACTICE OF LAW A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing St. Thomas Aquinas (1224-1274)

9. II. VIRTUE ETHICS AND THE PRACTICE OF LAW A. Aristotle’s Nichomachean Ethics: Virtue and Human Flourishing Aristotle (384-322 B.C.)

10. II. VIRTUE ETHICS AND THE PRACTICE OF LAW Consequentialism (Utilitarian Approaches) Jeremy Bentham John Stuart Mill (1748-1832) (1806-1873)

11. II. VIRTUE ETHICS AND THE PRACTICE OF LAW Deontology (Duty/Rule-Based Approaches) Immanuel Kant (1724-1804)

12. II. VIRTUE ETHICS AND THE PRACTICE OF LAW B. Duty or Virtue? (Or Both?) The Adversary Ethic Aristotle: Justice is the “complete virtue.” Virtuous lawyer—uses rules (the law) to seek justice for the client

13. II. VIRTUE ETHICS AND THE PRACTICE OF LAW B. Duty or Virtue? (Or Both?) Some virtues for the practice of law: Balance Courage Idealism Compassion Creativity Energy Discipline Perseverance Honesty

14. II. VIRTUE ETHICS AND THE PRACTICE OF LAW B. Duty or Virtue? (Or Both?) Aristotle: phronēsis (an intellectual virtue) Translated as “prudence,” or “practical wisdom” Obtained through experience with virtue.

15. II. VIRTUE ETHICS AND THE PRACTICE OF LAW B. Duty or Virtue? (Or Both?) The Unifying Virtue of Integrity: Wholeness/Constancy Fortitude to resist ethical invasions

16. II. VIRTUE ETHICS AND THE PRACTICE OF LAW C. Good Habits: Forming Virtuous Character for the Practice of Law Aristotle: The moral virtues are formed by habit. We learn to be virtuous by acting virtuously.

17. II. VIRTUE ETHICS AND THE PRACTICE OF LAW C. Good Habits: Forming Virtuous Character for the Practice of Law Aristotle: Because the student of virtue lacks experience, it is important to learn virtue by modeling one’s actions after those of others who possess practical wisdom.

18. III. EARNESTNESS AND THE PRACTICE OF LAW A. Kierkegaard’s Ethics of Decision Søren Kierkegaard (1813-1855)

19. III. EARNESTNESS AND THE PRACTICE OF LAW B. Earnestness: Engaging the Heart and Avoiding Self-Deception Kierkegaard: alvorlighed (Danish) Translated “earnestness” a virtue of the WILL

20. III. EARNESTNESS AND THE PRACTICE OF LAW B. Earnestness: Engaging the Heart and Avoiding Self-Deception Kierkegaard: Earnestness Engaging the self wholeheartedly Acting with first-personal freedom of WILL

21. III. EARNESTNESS AND THE PRACTICE OF LAW B. Earnestness: Engaging the Heart and Avoiding Self-Deception Avoiding self-deception: Ethical wrongdoing results when we talk ourselves out of what we know to be the moral course of action. It is a failure of WILL.

22. III. EARNESTNESS AND THE PRACTICE OF LAW C. Professional Responsibility as Personal Responsibility Kierkegaard: “Subjectivity,” “existence,” and “choice” relate to character, but with passionate awareness of our concreteness, finitude, and inwardness of individual existence.

23. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? “When lawyers are glibly loyal as part of ‘doing their job,’ they risk corruption. They forego the personal engagement that characterizes an integral approach to decision-making. ‘Am I the sort of person who could do this?’ and ‘Could I face the mirror comfortably?’ are questions crucial to moral identity that lawyers may suppress.” Reed Elizabeth Loder, Integrity and Epistemic Passion, 77 Notre Dame L. Rev. 841 (2002).

24. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? A. First-Personal Decision Making: Becoming a Virtuous Lawyer What is “first-personal decision making?” Don’t just ask, “May a lawyer do this?”…. Ask yourself, “Should I do this?”

25. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? B. Integrity: A Unifying Virtue for the Practice of Law Integrity: Wholeness Stability of character Constancy and “Truth To” Oneself

26. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? B. Integrity: A Unifying Virtue for the Practice of Law “I am not bound to win, but I am bound to be true. I am not bound to Succeed, but I am bound to live up to what light I have.” Abraham Lincoln

27. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? B. Integrity: A Unifying Virtue for the Practice of Law “You must remember that some things legally right are not morally right.” Abraham Lincoln

28. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? C. Repetition of Ethical Action: Remaining a Virtuous Lawyer

29. IV. THE DECIDING LAWYER—WHO AM I AND WHO WILL I BECOME? C. Repetition of Ethical Action: Remaining a Virtuous Lawyer “The moral fabric of an attorney is stitched out in the dozens—hundreds—of decisions that she makes each day.” Judge Patrick J. Schiltz

30. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? Law is a collective, community-oriented enterprise. Each legal community has a distinct ethical and moral climate.

31. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? A. Living in Legal Community with “Friend and Foe”

32. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? A. Living in Legal Community with “Friend and Foe” “[D]o as adversaries do in law, strive mightily, but eat and drink as friends.” The Taming of the Shrew, Act 1, Scene 2 William Shakespeare

33. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? A. Living in Legal Community with “Friend and Foe” Jayhawk Capital Mgt. v. LSB Indus. (D. Ka.) April 12, 2011 order Judge Eric F. Melgren

34. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? A. Living in Legal Community with “Friend and Foe” “Defendants’ Motion [for Continuance] is GRANTED.” “The Ermans are CONGRATULATED.” “IT IS SO ORDERED.”

35. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing Where should a law student or lawyer look for practical wisdom to learn how to become and remain a virtuous lawyer? To the good mentor.

36. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing “Whether law is practiced ethically in any particular community depends not upon the community’s formal rules, but upon its culture.” Judge Patrick J. Schiltz

37. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing “A novice attorney learns the value of a mentor either by having one or by not having one.” Judge Patrick J. Schiltz

38. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing “[A]s important as mentoring is in teaching young attorneys to practice law well, it is far more important in teaching them to practice law ethically.” Judge Patrick J. Schiltz

39. V. ETHICAL DECISION MAKING IN A LEGAL COMMUNITY—WHO ARE WE AND WHO WILL WE BECOME? B. Sharing Practical Wisdom: Mentorship and Lawyer Flourishing The flourishing of a legal community depends on how well-anchored its members are to each other.

40. CONCLUSION