In October, the American Bar Association named Shobha Mahadev, clinical professor of law at the Children and Family Justice Center (CFJC) at Northwestern University Pritzker School of Law’s Bluhm ...
Since coming to the Law School over 20 years ago, Wendy Muchman and Mary Foster have been able to completely change the way students interact with the subject of ethics and professional responsibility. The longtime friends and colleagues have created a curriculum so distinct that law professors around the country have advocated for its inclusion at their institutions.
Mary Foster, the semi-retired and occasional lecturer in legal ethics, joined the Northwestern Pritzker Law faculty in 2000, only a year after Muchman, professor of practice. The pair always looked after each other. “We are great teammates working together,” says Muchman. “That’s how it is with women. Each one of us would always do more so the other person doesn’t have to.”
Before Northwestern, both worked at the Illinois Attorney Registration and Disciplinary Council Commission, where they investigated and prosecuted lawyers for ethical misconduct. “We actually shared a job,” says Foster. “We were managers of a litigation group there, and we shared that job after we had children. We became fast and best friends through our work experience.”
The Inception of Legal Ethics
Legal ethics, also known as professional responsibility, are a set of principles that members of the legal profession are expected to follow in their practice. “It’s about the law that governs you as a lawyer, as opposed to the law that governs your client,” says Muchman. The legal profession has existed for over two thousand years, but the requirement for law students to take a legal ethics course did not become standard practice until the Watergate Scandal of 1972.
From 1972 to 1974, then-U.S. President Richard Nixon and his administration were embroiled in one of the biggest political scandals in history, known as Watergate, which led to Nixon’s resignation in 1974. “When so many lawyers were actually convicted of crimes and went to jail, the [American Bar Association] determined that legal ethics needed to be a part of the law school curriculum,” says Muchman.
Muchman says former Nixon White House Counsel, John Dean, who pled guilty to a felony related to Watergate, testified at a Senate hearing. He noted that there were 21 names on a list he created, all lawyers. Dean said it was astonishing that so many lawyers were caught up in criminal conduct.
Because of the rule-focused nature of the course, and because it’s a requirement, students often approach the coursework with a sense of dread. “We always start the semester by saying that we think legal ethics is one of the most important classes that they’ll take in law school,” says Foster. “And [one of] the most interesting classes because it’s the one class where they study the behavior that applies to them as opposed to the behavior of their clients.”
Muchman adds: “You would never go into a meeting with a client unprepared to understand the law related to their case. So you need to understand the law that relates to your conduct as a lawyer.”
The History of Ethics at Northwestern
When they were very young lawyers, Muchman and Foster met the Law School’s Steve Lubet, Edna B. and Ednyfed H. Williams Memorial Professor of Law Emeritus, and Robert Burns, William W. Gurley Memorial Professor of Law Emeritus, at the National Institute for Trial Advocacy (ITA), a non-profit organization that provides lawyers with training in trial advocacy skills. At the time, Muchman was a lawyer regulator and worked for a branch of the Illinois Supreme Court that polices lawyers in their professional conduct. Eventually, they both taught in the ITA program with Lubet and Burns.
“By this point, [Professors Lubet and Burns] asked me to come teach at the Law School,” says Muchman. “It was thanks to them that I started teaching my own stand-alone two-hour legal ethics class.” After a successful first semester, Lubet and Burns told Muchman that they needed to add another permanent lecturer to the Northwestern Pritzker Law ethics team. “I had a young child and a full-time job as a regulator. So I knew I didn’t have time, but I said, ‘I could give you somebody else good.’” Foster started teaching shortly after.
“We’ve been best friends since, I don’t know, the 1980s! A long time,” says Foster. “Because of that, when we decided to create this curriculum, we wanted to teach [it] together. And so it’s very easy for us to teach a course together because we happen to be best friends. We finish each other’s sentences. A lot of people, a lot of lawyers, see us at continuing legal education events and get us confused even though we look nothing alike.”
Muchman and Foster say the success of their teaching at Northwestern Pritzker Law is due to the unwavering support of Lubet and Burns. “Steve Lubet and Bob Burns are outstanding mentors and experts in the field of legal ethics and professional responsibility,” says Muchman.
Developing the Curriculum
In the original ITA program created by Lubet and Burns, the curriculum focused on ethics for the litigator. “We [then] taught this more mainstream legal ethics course, and we noticed in that two-hour course, you have to touch on so many different areas of law to cover it all, so that you make sure that every student in the class is going to find something that’s relevant to them,” says Foster. “We thought, ‘Well, maybe we don’t have time to cover everything.’ And so, maybe it would be more beneficial to certain students to take a more focused legal ethics class.”
When Muchman and Foster became adjunct professors at the Law School, they put their plan in motion. Their coursework started with legal ethics for the business lawyer and legal ethics for the global legal practitioner, to serve the many students who planned on becoming transactional attorneys. Luckily, they also had the support of another faculty member, James Speta, Elizabeth Froehling Horner Professor of Law.
“We have gotten nothing but incredible support from the administration here, starting with Jim Speta and more recently Sarah Lawsky, [vice dean and Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law],” says Muchman. “One hundred percent support for every idea we ever had, and as well as [from] the curriculum committee.”
After the growing popularity of those two courses, Muchman and Foster were able to create other ethics courses tailored to students’ needs, including ethics tailored to students in the Master of Science in Law (MSL) program, ethics in motion, legal ethics for the government and public interest lawyer (with a particular focus on the growing community of public interest students at the Law School), and more. “The students gave us great feedback,” says Foster. “I think they really appreciated the ability to take a course that, although required, actually was more meaningful to them because they could anticipate the ethical dilemmas that they might actually face in practice.”
That’s what makes the work Muchman and Foster does so revolutionary. Students get to see how the lessons they are learning from a textbook will affect them when they leave the halls of law school.
Students can be “a little leery of why they need to take the course,” says Foster. “They will say, ‘Well, I understand I can’t cheat. I can’t lie. I can’t steal. So why do I need legal ethics?’ And I think that they learn fairly quickly throughout the semester that legal ethics is much more nuanced than that. And that the best way to learn legal ethics is to bring in real-life cases. Wendy and I have had the benefit of having seen all of these cases because we prosecuted lawyers who made errors in judgment and faced fairly significant ramifications.”
Muchman agrees, saying her work as a lawyer regulator gives her a unique perspective on the coursework. “[We] have a unique ability to teach legal ethics because [we] see the issues that actually get lawyers into hot water. [We] spend some time educating the profession—lawyers, judges, and law schools—on the rules and the law involving legal ethics and professional responsibility,” she says. “You develop close ties with the American Bar Association Center for Professional Responsibility, the National Organization of Bar Council—I was a board member of that organization. Because of those close ties, you keep abreast of societal changes that are impacting the practice of law.”
Muchman also notes that courtroom experience informs their ability to give students real-life scenarios from which to pull. “[Mary and I] have experience prosecuting lawyers for professional misconduct, and we’re able to give the students actual examples of cases where lawyers faced discipline,” she says. “It makes it much more real to them.”
Veronica Root Martinez, professor of law at Duke University School of Law, says Muchman and Foster’s ethic courses are some “of the most innovative professional responsibility curriculums in the country.” Before joining Duke, Martinez was a professor at Notre Dame Law School, where she was the Robert & Marion Short Scholar, and director of the Program on Ethics, Compliance & Inclusion. “This is the sort of distinctive curriculum that should be marketed and promoted, because it’s incredibly unique,” she says. “Other law schools should study the work being done at Northwestern and consider ways to follow the standard they have created.”
Muchman says while most students enroll in a class reflecting their anticipated future practice focus, some enroll in a different class to obtain exposure to another area of interest. Foster adds that other classes taught by the duo, such as “The Law of Whistleblowing and Perspectives on Ethical Lawyering,” offer students an opportunity to further their study in legal ethics.
“[Wendy and I] prosecuted lawyers for ethical misconduct, so we’ve always known that it’s important to your practice to study ethics,” says Foster. “We also tend to be super nerds, I would say, proud ethics nerds.”
The Future of Ethics
Muchman and Foster continue to develop the ethics curriculum as the profession evolves, including discussions of the impact of technology on the practice of law, and cultural competence and its role in informed consent. “We don’t know what the legal practice is going to look like in a decade or two decades,” says Foster. “I suspect that there will be new areas of law, and I can foresee other ethics courses being interesting to lawyers in the future. At the same time, it’s interesting that history tends to repeat itself. The entire reason we have to teach legal ethics at law schools is because of the Watergate scandal. [Yet] we’ve been seeing some of those same issues in the last five years. So do lawyers learn their lessons? I don’t know, really I don’t.”
Muchman is currently teaching a new ethics course at the Law School, “Professional Responsibility in Legal Writing,” with Michelle Falkoff, clinical professor of law and director of the Communication and Legal Reasoning Program.
“It’s such a fascinating and evolving topic that if you understand it and have a history of involvement with the issues, it helps,” says Muchman. “And the issues include malpractice. Or if you practice before the SEC, what other statutes and obligations govern your conduct? If you are an immigration lawyer and you practice before the immigration board, there [are] other rules that govern your conduct. What are they? You’d better know.”
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