The Ethics Project in Legal Education

Michael Robertson, Lillian Corbin, Kieran Tranter, Francesca Bartlett

• Publisher: Taylor & Francis
• Year: 2010
• Print ISBN: 9780415546515
• eBook ISBN: 9781136894497
• Edition: 1
• Topic: Diritto
• Subtopic: Etica e responsabilità professionale nel diritto

The contributions in this volume suggest that "the ethics project in legal education" is increasingly an international one. Even though the strength of commitment by both the profession and the legal academy to "ethics learning" within law schools varies, two fundamental questions confront all who work in this area. First, what is it that we want our students to learn (or, perhaps, in what manner do we want our students to develop) from the teaching of "legal ethics"? Second, how can we create a learning environment that will encourage the nature and quality of learning we think is important?

All the contributors to this volume take a strong stand on the importance of ethical legal practice and the role of law schools in developing students' capacities in this area. They share a belief in the essential need to encourage law students to engage with the moral dimensions of legal practice. The questions that these scholars grapple with are therefore not of the "should we be teaching this?" variety, but "how might we best to go about doing this, so that our efforts within law schools really make some difference?" Each of the chapters in this volume adds uniquely to our understanding of these matters.

1
Introduction

Michael Robertson, Lillian Corbin, Kieran Tranter and Francesca Bartlett

A common starting point for all the chapters in this book – the third and final volume in the series of publications flowing from the Third International Legal Ethics Conference held in Australia in 2008 – is that law schools worldwide do have an important role to play in preparing law students for the ethical challenges of legal practice. This fundamental assumption has not always been widely shared, and some resistance to the proposition continues. In fact, law school ethics teachers in most, if not all, of the countries represented by the contributors to this volume continue to see themselves as a minority in law school education. Not only are legal ethics teachers still relatively few and far between, but many who have chosen – sometimes passionately – to work in this area and to develop a scholarship on the pedagogy of legal ethics continue to see their mission as one that needs to be advocated constantly within wider legal and academic communities.

This is because legal education as a whole, even in countries like the United States, the United Kingdom and Australia, has yet to accord legal ethics teaching the degree of importance that the contributors to this volume, among many others, have long taken for granted. However, the traditional ambiguity and sometimes indifference towards the legal ethics project in legal education has gradually been giving way to an acceptance of the importance of this area of learning. In comparison to ten or even five years ago, there is now a wider acceptance of the need to take seriously the challenge of teaching and learning ethical responsibility for legal professional practice. One recent and significant example of this growing recognition is contained within the core messages of the influential 2007 Carnegie Report in the United States. This report underlines in the strongest possible terms the future importance of legal ethics learning and teaching in American law schools – or what it refers to, inter alia, as ‘ethical-social apprenticeship’– and this powerful message is likely to be influential in international legal education for many years to come. For example, the authors of the Carnegie Report make the following observation:

Insofar as law schools choose not to place ethical-social values within the inner circle of their highest esteem and most central preoccupation, and insofar as they fail to make systematic efforts to educate towards a central moral tradition of lawyering, legal education may inadvertently contribute to the demoralization of the legal profession and its loss of a moral compass, as many observers have charged.¹

Taken together, the contributions in this volume suggest that what we refer to as ‘the ethics project in legal education’ is increasingly becoming an international one. Even though the strength of commitment of both the profession and the legal academy to ‘ethics learning’ within law schools inevitably differs across (and within) jurisdictions, it seems likely that two fundamental questions confront all those who work in this area. First, what is it that we want our students to learn (or, perhaps, in what manner do we want our students to develop) from the teaching of‘legal ethics’? Second, how can we create a learning environment that will encourage the nature and quality of learning we think is important? Of course, neither of these questions invites a straightforward or uncontroversial response, as many of the contributions in this volume demonstrate.

Generally speaking, the kinds of answers that the contributors – who come from different parts of the world – give to these two questions nevertheless reflects a common belief in the vitally important social roles that lawyers perform, no matter where lawyers practise. This is despite the international variations in resources and depth of commitment to the ethics project, together with variations in the character of the political and legal systems within which law schools are located. Hence, a common underlying concern is about the importance of graduating future lawyers who recognize that legal practice sans ethical practice is almost always antithetical to the needs of the kinds of societies we inhabit. In communities in which special emphasis is placed on the rule of law and the sometimes precarious rights of citizens, lawyers have an indispensable role to play in assisting individuals in numerous ways. This includes providing citizens with principled advice and access to core democratic institutions. Lawyers’ work that is disrespectful of the moral imperatives of legal representation and assistance is, ultimately, costly and counter-productive. It is therefore hardly surprising that, notwithstanding differences in emphasis, all the contributors to this volume take a strong stand on the importance of ethical legal practice and the role of law schools in developing students’ capacities in this area. Put simply, they share a belief in the essential need to encourage law students to engage with the moral dimensions of legal practice. The questions with which these scholars grapple are therefore not of the ‘Should we be teaching this?’ variety, but rather ‘How might we best to go about doing this, so that our efforts within law school really make some difference?’

Each of the chapters in this volume adds uniquely to our understanding of the ethics project in legal education. Inevitably, each dwells to a lesser or greater extent on some of the basic challenges surrounding legal ethics learning and teaching in law schools. As anyone who works in this area well knows, a familiar theme in much of the existing literature on legal ethics teaching in law schools is the inadequacy or impotency of traditional law curricula in encouraging the kind of learning that really seems worthwhile. It is therefore not surprising that the contributors to this volume share these concerns, and this seems like a convenient point to begin this overview of what each contributor brings to this volume.

Lynda Crowley-Cyr, in her arguments for a greater ‘ethical literacy’ and also ‘reflexivity’ among law students in an Australian context (Chapter 8), notes some of the failings commonly ascribed to traditional legal education. Likewise, David Chavkin, in his chapter on the importance of bringing experience and practice to the teaching of legal ethics (Chapter 4), begins by suggesting that the major ‘deficiency’ in legal education in the United States and elsewhere lies in the area of the teaching of professional responsibility. He highlights a grave concern shared by many contemporary critics of legal education, which is that law schools too often focus ‘on the transmission and temporary retention of information’. Clark Cunningham and Charlotte Alexander also echo these concerns about the mainstream approach to legal ethics in American Law Schools in Chapter 5, drawing at some length on the Carnegie Report to highlight the shortcomings of a focus on avoidance of professional disciplinary action or civil liability rather than on ‘mature professional identity’.

Julian Webb, in his discussion about the crucial need to take values more seriously in legal education (Chapter 2), notes that in England and Wales the professional ethics teaching that does take place tends ‘to be of a highly instrumental rule-based character’. Helen Kruuse, in her examination of the practices and challenges facing an ethics education in South Africa (Chapter 6), also strikes a familiar chord in noting the unfortunate effects of a legal education that over-emphasizes ‘rule craft’ in many parts of the curriculum. One of the consequences of this preoccupation is the stultifying effect it has on moral reasoning in the ‘ethics classroom’. Linda Haller makes a similar point in her argument about the need to be willing to encourage students to read traditional cases in a non-traditional way (Chapter 10). Serious concerns about the shortcomings of a rules-based learning agenda in Scotland are expressed by Donald Nicolson in his contribution about the unique contributions that clinics can offer in this area, including their potential to influence student moral development (Chapter 9). And Justine Rogers, in her chapter on the very significant challenges associated with assessment of legal ethics learning (Chapter 11), emphasizes the limited objectives of ethics teaching and learning through the way that common assessment practices often require and reward mere reproduction of knowledge, such as that contained within the ethical codes.

Most, if not all, contributors recognize, at least implicitly, the importance of placing emphasis on student learning rather than teacher teaching– and therefore the role of teachers in creating an effective learning environment for their students. This represents an important shift. Traditionally, the role of the teacher was to teach– that is, to transmit or impart knowledge to students. However, contemporary educational theory has altered the relationship between teacher and student by placing the student at the centre of the learning process. Much of this theory holds that students are themselves responsible for their learning, and therefore it is they who need to commit to and engage with the learning opportunities presented. Under this model, the role of teacher is recast from that of transmitter to one of facilitator. But this is not to suggest that the teacher’s role has become any less important. In fact, it is probable that the responsibility of developing learning opportunities that encourage law students to reflect on their own views of what it means to act professionally and ethically is far more challenging for teachers than is implied by the ‘transmitter’ role.

Explicit statements evidencing this understanding of the changed teacher– student relationship are evident in Chapter 8 by Crowley-Cyr. In her view, an approach to teaching that holds up the teacher as someone who has superior knowledge, and who is therefore able to teach the students what they are required to learn, is flawed. Crowley-Cyr advocates an andragogical approach in which students are acknowledged as self-directed reflexive learners, with the teacher taking a facilitative role in the learning process. Similarly, Cassandra Sharp in Chapter 3 accepts that students are ‘active viewers of legal popular culture … constantly interpreting, transforming and producing meaning in relation to the images and stories as presented in fiction’. In this, she implicitly recognizes that it is the students themselves who are driving their own learning, from which they construct who they believe they are – that is, their own identity.

In suggesting that students are capable of developing a sense of democratic intellect through a process of engaging in moral reflection, Webb too (in Chapter 2) implies that the teacher’s role is not to be prescriptive, but rather is one that involves the use of debates, discussions and even the regular methods of lectures and tutorials to challenge students to develop their own ethical understandings and self-identity.

In saying that students are responsible for their learning, it is noticeable that many of the authors make reference to the idea that students are constructing their own knowledge. Although these contributors do not specially mention any particular educational theory, it appears that some are really reflecting aspects of constructivism. Within constructivism,² learners are seen to be ‘actively constructing’ knowledge through their own experiences. In this way, learners construct their own perspectives of meaning. Sharp, for instance, writes in Chapter 3 of the need for students to self-reflect around issues of morality and ultimately ‘construct identity’– or, put in another way, ‘reflexive law students could reflect on their own experiences … and actively construct identity in light of those reflections’. Similar ideas are evident in Chavkin’s discussion in Chapter 4 about students ‘creating’ and‘developing’ their knowledge, and also in Webb’s references in Chapter 2 to ‘self-work’, which involves students developing ‘confidence, interpersonal skills [and] the capacity for mature reflection’, which in turn leads to their own self-identity.

Another noteworthy feature of many of the contributions is the commitment shown by the authors to reaching into other disciplines for guidance and additional resources. These efforts inevitably assist in enriching our understanding of the possibilities for developing our own and our students’ learning in this area. For example, Rogers, Crowley-Cyr and David McQuoid-Mason all find special relevance for law students in engagement with bio-ethical principles, while Nicolson, Cunningham and Alexander rely to a great extent on contemporary moral psychology in offering better understandings of what may be important and possible for the ethics learning project.

At this point, it is convenient to return to the first fundamental question referred to above, which is about what it is that we want our students to learn or in what manner we would like them to develop from our teaching endeavours. Although the chapters in this volume provide a variety of responses to this question, it is possible to identify a number of common perspectives on what the authors advocate.

Taking each contribution in turn, and in no particular order, Nicolson is clearly interested in encouraging law students to develop ‘an attitude of ethical professionalism’; however, he wants to take this further so that legal education might ‘positively influence the development of students’ moral character’, which he sees as offering ‘the best hope for influencing the future behaviour of lawyers’. Although Kruuse does not employ such phraseology, it is likely that she has similar learning outcomes in mind in wanting students to ‘develop a sense of ethical judgment’, the meaning of which she links to what is referred to as ‘second-order reasoning’. Ultimately, she wants law students to ‘develop in their own ethical practice’. Likewise, Cunningham and Alexander, drawing heavily on the insights and recommendations of the Carnegie Report, are strongly committed to the goal of developing law students’ capacity for what they refer to as professional judgment. Haller, in her call for a careful rereading of seemingly ‘benign’ cases, sees opportunities for developing in students a valuable and critical reflection on lawyers’ social and professional roles, which includes a greater sense of their moral responsibilities.

Like Nicolson, Sharp is interested in students’ moral development, but her position suggests less certain learning outcomes. While she recognizes the ‘vital importance … [of making] possible the enhancement of student capacity for self-determination’, she is careful to add that this should not involve an agenda to ‘mould’ certain kinds of thinking. Ultimately, students should be provided with opportunities ‘for effective and appropriate personal and professional decision-making, enabling them to develop and evaluate their values and attitudes in a self-reflective manner’.

Crowley-Cyr believes one of the goals of legal education must be to ‘educate future professionals who have internalized an autonomous capacity to apply ethics in the practice of law’. In advocating an andragogical (adult learning) approach based on the bio-ethical principles of autonomy, beneficence, non-maleficence and justice, she shares some common ground with both McQuoid-Mason and Rogers. For McQuoid-Mason, these principles are a valuable resource for legal ethics teaching and learning, not least because they resonate strongly with the core values of legal practice. The principles provide ‘a simple tool for busy practitioners and aspiring lawyers and resource-starved legal ethics instructors in developing Commonwealth countries, to navigate their way through their local professional rules of conduct’. Used carefully as a learning resource, these principles ‘simplify rather than complicate ethical issues for legal practitioners and aspiring lawyers so that they do not feel overwhelmed and disempowered by them’. Rogers, in drawing on an assessment model from biomedical ethics that posits ascending levels of ethics learning from ‘knowledge’ through to ‘habituation’ and ‘action’, argues for a ‘deeper, more reflective ethics education … cultivating responsibility, judgment and sensitivity rather than the “right” answer’.

An appreciation of the significance of ‘values’ in legal education is evident in a number of contributions, but Webb gives this topic the closest attention. In calling for far more emphasis on values, he states, for example, that ‘one of the functions of legal education should be to provide an opportunity to develop that kind of critical evaluation of and reflection on one’s values within a legal context’. The values he sees as calling for more attention in the development of students’ abilities include ‘the values of ‘society’ at large; the values of law as a social and political construct; the ethics and values of legal professionalism; and those ‘of liberal higher education itself’. Chavkin’s position on what students might learn in this area overlaps with those of others in a number of ways. For example, he too advocates the application of adult learning principles, and wants students to develop a sense of professional responsibility for their interactions with clients – through experiences that encourage self-reflection on the values that inevitably emerge within the practice of law.

Moving on from the question about the nature and quality of learning that is regarded as important, if not vital, it is now worth noting the kinds of approaches and strategies that might be used to create the conditions necessary to achieve these kinds of learning outcomes. Not surprisingly, some of these accounts are based upon the authors’ own experiences as legal ethics teachers. It is also worth makin...

Table of contents

• Routledge Research in Legal Ethics
• Contents
• Preface
• Contributors
• 1 Introduction
• 2 Taking values seriously: the democratic intellect and the place of values in the law school curriculum
• 3 ‘Represent a murderer … I’d never do that!’ How students use stories to link ethical development and identity construction
• 4 Experience is the only teacher: bringing practice to the teaching of ethics
• 5 Developing professional judgment: law school innovations in response to the Carnegie Foundation’s critique of American legal education*
• 6 A South African response to ethics in legal education
• 7 Can the bioethical principles provide simple signposts for ethical legal practice? Some thoughts on using the bioethical principles as broad guidelines for ethical conduct in developing Commonwealth countries in the context of the English Solicitors’ Code of Conduct and other ethical rules
• 8 Towards ethical literacy by enhancing reflexivity in law students
• 9 Learning in justice: ethical education in an extra-curricular law clinic
• 10 Reading reported cases through a legal ethics lens
• 11 Coming to terms with legal ethics assessment
• Index