I am preparing to give a lecture on ethics and rhetoric on December 3, 2010 to Colorado State government lawyers. The conference is sponsored by the Office of the Colorado Attorney General. As part of my research, I am reviewing the transcript of a speech given by the Honorable John L. Kane, United States District Court Judge, District of Colorado. His speech is titled LEGAL ETHICS CONSIDERED AS AN OXYMORON and was presented to the Denver Bar Association on January 15, 2002.
I share a brief section of the speech that rejects rigid deductive logic and pleads for moral intervention—that is, legal ethics. Please note the elegant poetic analogy Judge Kane employs at the end of the quotation.
Judge Kane wrote:
“Third, as I describe in greater detail in the article on judicial impartiality handed out to you, legal thinking has yet to recover from the influence of the nineteenth century rationalists who gave us such paradoxical innovations as the case method for studying law because they insisted that law was a science. They asserted that the same law would be applied in the same way in similar cases so as to make results entirely predictable.
In an 1887 speech at Harvard, Dean Christopher Columbus Langdell went so far as to say:
Law is a science, and . . . all the available materials of that science are contained in printed books. . . . the library is the proper workshop of professors and students alike; . . . it is to us all that the laboratories of the university are to the chemists and physicists, the museum of natural history to the zoologists, the botanical garden to the botanists.
Judge Kane continues:
How terribly sad that such a prominent mover and shaker in the law didn’t stuff that nonsense and say, instead, that the law is to the lawyer all that the piano is to the musician.”
To me, legal ethics arise at the intersection of deductive reasoning and ethical principles. Reasoning is not sufficient; one must reason virtuously. Legal ethics, then, is the study of or the discipline espousing the moral duties a lawyer is ethically obligated to bring to the profession of the law. Legal ethics mean, among other things, that upon taking the oath, a lawyer cannot do certain things.