Epistemic Virtues for Lawyers

Criticism of lawyers is ubiquitous. Thomas More, the author of Utopia, believed there is no need for lawyers in an ideal world, as its inhabitants will plead their own cause. Without lawyers, he thought, people will be more successful in determining what is true and what is false.

Long before, the Athenian lawyer Lysias complained about colleagues trying to get innocent people involved in law because they had noted that such clients are willing to spend more on legal services than ‘guilty clients’. And a century ago, Louis Brandeis, the famous US judge, lamented that lawyers have ‘allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people’ .

Brandeis and Lysias criticize lawyers for lacking professional integrity. More, by contrast, points to the purported lack of professional competence among lawyers. The field of ‘legal ethics’ – ethics for lawyers – has traditionally focused on integrity violations. But legal scholars such as Anne Ruth Mackor have argued that the core value of the legal profession is not integrity, but rather competence, because it is competence that sets professions apart from other occupations. We expect a basic level of integrity from everyone. But we expect a very specific type of competence from professionals. This competence is acquired through years of study and professional training, continuously updated in light of new developments, and made practically useful to fulfil the profession’s social function.

This is a persuasive argument. But it creates a difficulty. What normative theories can legal ethicists and lawyers deploy to evaluate professional competence in concrete real-life cases? Standard normative theories that help professionals judge integrity violations are well-known, including virtue ethics, Kantian ethics, utilitarian ethics, and so on. Normative theories of competence are, however, much less mainstream – at least until recently.

In the last two or three decades, philosophers have started developing fully-fledged normative accounts of how we collect, process, store, and communicate information; how we gain and share knowledge, wisdom, and understanding; and how we acquire, maintain, and transfer professional competence.

One approach in this new area in philosophy is called ‘virtue epistemology’ (from the Greek word for ‘knowledge, episteme). A virtue is a good character trait to possess. It is something that you can acquire, as opposed to something you’re born with. It helps you to do certain things or to realize certain ends, leading you to steer the middle course between two extremes. A courageous person, for instances, doesn’t behave like a coward, but is not reckless either.

The thought behind virtue epistemology is that there are not only virtues that guide the way we act and deal with other people, the traditional domain of ethics and integrity. There are also virtues – called ‘epistemic’ virtues – that guide the way we gain knowledge, insight, or competence.

A key example of an epistemic virtue is curiosity, or love of knowledge. A curious person wants to learn new things, is open to new experiences, and wants to acquire new skills. But they don’t exaggerate, they are not excessively curious, and choose what to learn or experience depending on other life goals. Another epistemic virtue is humility. People possessing this virtue know their limits. They know when to rely on other people with more, or different, experience or expertise.

Back to the lawyers. We saw that Anne Ruth Mackor argued that professional competence is the core value of the legal profession, more so than integrity. A consequence of this is that lawyers should possess the required qualifications, and keep their knowledge up to date. This requires some degree of curiosity. If your lawyer isn’t really interested in new developments in their field, it is probably a good idea to find another lawyer.

Professional competence also entails that a lawyer should refer you to another if your case requires expertise they do not have. Just as in health care, you want to be served by a specialist. This requires that the lawyer has a sufficient degree of humility to acknowledge where their expertise ends. A lawyer who is too arrogant or vain to admit their own limitations is a lawyer you’d do good to avoid.

This is not to suggest that this is exclusively the responsibility of the individual lawyer. Law firms – well, the legal professional as a whole – have to  play their part too. For lawyers to collect and interpret the information needed to advise a client or to represent them in court, they must have a high degree of independence. Where lawyers are prevented from collecting information, the risk is that they are insufficiently informed to assist their clients. And where there are conflicts of interest within a law firm, the risk is that their views become inadequate because of bias. According to a well-known code of conduct, lawyers ‘cannot represent two or more clients in the same case if there is a conflict or risk of a conflict between them’. Perhaps, however, one should err on the side of caution and avoid such situations altogether.

The virtue epistemological approach to legal ethics that I’m suggesting here is certainly not a panacea to all problems. And we shouldn’t forget that lots of things go quite well. Experiences with teaching in business, health care, education, accounting, and other areas shows, however, that the vocabulary of curiosity, humility, and other epistemic virtues helps professionals focus their thoughts on professional competence in concrete real-life situations. It’s time for the legal profession to join.