Professor Andy Boon of Wesminster University has produced an excellent draft report on ‘A model curriculum for legal ethics’ which you can download from John Flood’s site. It’s a joyfully short report and builds on Preparatory Ethics Training for Future Solicitors, Kim Economides and Justine Rogers which recommended that the Law Society “take the lead and encourage the SRA to… make awareness of and commitment to legal values, and the moral context of the law, mandatory in undergraduate law degrees.” Whilst I have misgivings about making the teaching of ‘ethics’ compulsory, it is difficult to resist the central point that a law degree which does not consider the legal professions and legal services risks disengaging students and the study of law from both the reality of practice and the reality of how law is applied. I agree, in particular, that this kind of contextual study of law is consistent with the purposes of the liberal law degree particularly if, “it takes a critical perspective on the subject”. I also support the broad definition of what is meant by legal ethics:
‘The study of the relationship between morality and Law, the values underpinning the legal system, and the regulation of the legal services market, including the institutions, professional roles and ethics of the judiciary and legal professions.’
Boon’s report contains good sense on what can sensibly be achieved. In particular:
“It is not feasible to require that the initial stage provide sufficient practical experience to ensure that skills or good habits for ethical practice became habitual. Nor would it be feasible, at least initially, to require forms of assessment that attempt to verify the good character and positive motivations of students. Rather, the aim of the ethics curriculum at undergraduate level should be to establish clearly in students’ minds the institutions of the legal system, the values that underpin them and the professions’ roles in relation to them. This will provide the foundation for students’ understanding of, and commitment to, their own professional responsibility.”
In the light of that, I have some doubt whether an undergraduate course can do more than begin, “to equip students to behave ethically” and have even more reservations that such course will, “enable them to play an active role in the formation of professional ethics.” For me, approaches to ethical standards are almost always learnt in practice. Whilst some will say this might be part of the problem, I believe undergraduate education will have limited effect in changing it. Undergraduate education might sometimes provide a bulwark against poor practice, leaving students with some sense of right or wrong against which they can evaluate the advice given to them by colleagues, but on most ethical issues they will be guided by their supervisors and colleagues rather than classes they took upwards of a year prior to entering into a training contract. I am sure anyone who has spent any time in or close to practice can recount tails of the way apparently clear ethical standards are transformed by working practices within firms. Another way of putting this is that the profession has to see itself, not just the educational institutions, as responsible for inculcating ethicality. If the aim is that undergraduate and LPC students will emerge with a well-developed ethical sense that they can then apply in practice then there is a degree of naivety and buck-passing in the Law Society’s approach.
I have some concerns too about the objectives that Andy Boon sets out. Framing the idea of legal ethics round issues of morality pushes the study of lawyers in a particular direction. There is value in the analytical/jurisprudential type of approach to the study of lawyers that characterises much teaching of ethics, but there are also limits to it. I would hope that the ideas behind the proposals could be more broadly framed to encourage a wider range of perspectives. In particular, I would prefer it if notions of morality were replaced by a somewhat broader notion of public interest. We should be encouraging law students to concentrate on more than the kinds of moral dilemmas that ethics teaching concentrates on but also on key ideas around what makes for effective lawyering (something on which we know far too little) and how business forces impact on practice. For me, social-psychology, economics and sociology have a lot to teach us about lawyers which students should understand which risk being missed by an orthodox ‘morality’ approach to legal ethics. That’s not to say (I hope) that you could not teach a broad, contextual course under the outcomes that Boon espouses, but that law schools may well be led in a particular direction by the language adopted and the detailed outcomes specified.
My underlying concern was brought home whilst reading Elizabeth Chambliss’ Measuring Law Firm Culture. The concern is this: is it ‘ethics’ we should be solely or principally interested in, or something else? If an aim of undergraduate education is to encourage law students to better understand legal practice either as knowledge in its own right or as a means of making some of them better practitioners we may need to think quite carefully about whether ethics should be the dominant frame of reference. Chambliss makes a number of pertinent points about differences in the way practitioners and academic think about ethics which bear some further thought. She suggests:
1. Academics tend to concentrate on bad news when focusing on ethics and have unrealistic expectations of what can and should constitute ethical behaviour. This critical reflex may distance us from meaningful (and useful) engagement with practice and also diminish the relevance of what they teach to their students.
2. Chambliss also suggests that they (we) tend to focus on ethics as a set of principles and dilemmas whereas practitioners see ethic questions as technical questions to which there is a correct answer (can I act? Can I act this way?)
“…lawyers used the term ‘‘ethics’’ to refer to the formal rules of “legal ethics, particularly those governing conflicts of interest, and viewed ethical questions as having technical, right-or-wrong answers. Such questions tend to be resolved by the lead partner or, if they are complicated, referred to the law firm general counsel. As one lawyer put it, ‘‘everyone goes to [the general counsel] for the ‘real’ answer on conflicts questions. And when he says it, you’re done.’’
3. In understanding what motivates lawyers and shapes their everyday behaviour it may be more (or as) important to think about values (or cultures). On this point Chambliss cites work by Kelly, ‘‘The lawyers I interviewed were largely disinterested in the kinds of ethical issues I was addressing with my students (with the exception, perhaps, of conflict of interest issues)… …“Instead, they were concerned with ‘‘their lives in practice’’ or what Kelly called ‘‘meaning-of-life ethics’’: Lawyers worry about their group practice, its direction, its future, and its quality. There is a lot of talk about friendship, about the value of a working life spent with (at least some) colleagues whom one admires, respects, and enjoys. Talk about values is common.”
Of course there is merit in exposing professional conduct to high standards of ethical scrutiny and challenging the view that ethics should be seen only as a technical compliance issue may also be important, but it is the idea of values that I wanted to dwell on. What Chambliss notes suggests, to me at least, is that the values and cultures of practice may be as important as ethics if one is to gain a good understanding of how law firms work (and indeed when they work well). Of particular interest is that Kelly’s respondents every-day concerns included quality (not ethics).