Reforming Legal Education and Training from an Ethical Viewpoint

A. A Critique of the Present System

The US, Australia, New Zealand and Canada all require professional ethics to be studied at undergraduate level. England and Wales is now one of the few leading jurisdictions not to make some material on ethics a central part of the qualification process.

i. The Socialising Role of Education and Training

There are three strands to criticism of the existing system from an ethical standpoint. The first is that the focus on rule-handling techniques produces lawyers who are merely ‘narrow, uncritical technicians’.^[868] This may have a generally negative on stu­dents’ moral reasoning.^[869] It shifts attitudes and values towards a conservative view of legal roles, away from idealism towards instrumentalism. This instils in law students the values of individualism, competitiveness, legalism and authoritarianism.^[870] The result is that they are too willing to accept uncritically established power relationships and values.^[871]

The second strand of the criticism of the undergraduate law curriculum is that it indoctrinates students into a neutral orientation, stripping them of passion and ren­dering legal study conservative and sterile.^[872] Imbued with formality, neutrality and objectivity, students reject the personal, and hence, bias, passion and commitment.^[873] This is consistent with the conclusion that the evolution of the case method in the nineteenth century mirrored the rule of law.^[874] It suggests that legal education makes a good job of instilling neutrality.

The third criticism of a doctrinally focused legal education is that students struggle to understand the practical impact or potential of law for lawyers, clients or society. Students often change career intentions during degree courses, away from public service type work towards better paid areas of work. The impact of legal education therefore has a negative impact on those with ambitions to help the socially disadvan­taged. It is not clear that this is entirely to do with financial prospects.

There is some evidence that legal study undermines idealism. Schleef found that during their studies, US degree students, irrespective of gender, shifted from extreme self-interest or altruism towards a mid-point consensus.^[875] So, for example, Hedegard found that, during legal education, career intentions drift away from legal aid, public service or government work.^[876] A desire to ‘help the poor’ transforms into support for zealous advocacy and pro bono representation. This could be considered important in an occupation professing public service orientation.^[877]

There is limited evidence that induction into the Anglo-American legal professions gives, as Glasser claimed, entrants a high sense of ‘calling’.^[878] A study of those training in legal aid firms found that many were candidates for jobs in higher paid fields.^[879] They were, however, strongly motivated towards legal aid work. A later part of a Law Society longitudinal study suggested that many entrants retained a desire for ‘mean­ingful’ public service work.^[880] This may be manifest as participation in pro bono publico and similar work. It may also resurface a little later in legal careers as a desire for a change in career direction.

Analyses of motivation are problematic, if only because we often do not understand ourselves.

What these various studies suggest, however, is that legal education does impact on lawyers’ values. It is arguable that, this being the case, ethics education should be more planned, transparent and open. During the process it may be useful to explore student understandings of the legal profession and its ethics. At present, as a body students hold somewhat populist views. In a world-wide survey, over 70 per cent of students agreed that lawyers have a lot of prestige, and over 60 per cent agreed that they deserved high incomes, while less than 30 per cent agreed that they were trustworthy or ethical.^[883]

ii. The Core or Foundation Subjects

a. Relevance of the Existing Core

It is arguable whether, if the core of legal study were a blank slate, the current subjects would be chosen to fill it. Whether two property subjects, Equity and Land, or both Public and European Law, would make the cut is open to question. The continuing relevance of the core subjects is therefore a significant issue. Criticising the Ormrod Report, Thomas and Mungham spoke of the core subjects being ‘embalmed... whereas the nature of the practitioners’ work has so altered as to make the very idea of core courses questionable’.^[884] Changes in the 40 years since Ormrod make this criticism even more relevant.

There are often suggestions for new core subjects, but little consensus on those that must be added. With the passage of years since Ormrod, universities have developed different approaches to studying Law.

b. Ethics in the Core

The view that the undergraduate stage should cover system and professional ethics enjoys wide support, including from influential individuals and bodies. Bob Hepple, who chaired the ACLEC, believed that ‘the teaching of professional ethics and conduct cannot simply be left until the vocational courses’.^[885] At an Anglo-American conference on ethics in legal education Lord Justice Potter argued that the undergrad­uate curriculum must include the ethics of law and the ethics of practising lawyers.^[886] The Law Society’s Training Framework Review Group was warm to the proposition, but not prescriptive.

The case for including professional ethics in the core of the initial stage hinges on three propositions. The first is that the chances of inculcating professional values increase with the time devoted to them. The second is that the process should start at the earliest time possible. The third is that the degree is a particularly important stage in professional formation. This is because the start of legal education is when the process of learning and socialisation is most intense and when students have the opportunity to consider issues at relative leisure.

The experience of prescribing ‘pervasive’ ethics for the vocational courses, in many ways similar to prescribing outcomes, is instructive. On professional courses, profes­sional ethics became marginal. Delivery was idiosyncratic and often banal. Until the Bar introduced central tests of ethics, assessment typically involved the dispersal of marks throughout the course for spotting conduct issues in substantive subjects.

The first argument against making ethics a core subject is that it would be at odds with the notion of the liberal law degree and the university ethos of inquiry. Subjects related in any way to legal practice are symbols of ‘vocationalism’.^[888] The second argument is that teaching professional conduct would involve ‘indoctrination’ into prescribed values. This, it is sometimes suggested, is antithetical to the aims of a liberal degree.

B. Designing Legal Ethics Courses

Course design is a process of choosing teaching and learning methods and course materials to achieve a purpose. The content of an ethics curriculum therefore reflects the priorities and aims of those designing it. The curriculum will promote certain val­ues, either explicitly or implicitly. Content may also reflect the teaching and learning methods the course employs.

i. Aims

There are different possible reasons for introducing ethics to degree students. Purposes dictate the aims of the course and the nature of the curriculum. For example, pro­fessions may aspire to increase the prevalence of ethical behaviour in legal practice, government may seek to promote entrepreneurial behaviour and consumers of legal services to promote an ethic of public service. Students, however, may simply need reassurance that they are entering an ethical profession.

a. Promoting Compliance

Education begins the process by which professionals internalise values. The initial part of the process must involve establishing the fundamental importance and legitimacy of the values that are promoted.^[889] In modern society people no longer simply accept rules. They often need to understand their rational basis. Compliance is achieved because rational behaviour is absorbed as part of the individual’s self-identity. Values are absorbed over a period of time and often directly affect behaviour.

b. Promoting Understanding of Role

The legal role is complex and demanding. Students absorb a sense of what the func­tions of the profession are and of their individual role from the start of their studies.^[891] There is a very good chance that most students are well advanced in their legal careers before they understand the full potential and responsibility of lawyers’ social role. There are competing arguments about when they should be exposed to more detailed analysis. It is arguable that the process should be more conscious and more explicit at a much earlier stage if it is to make a beneficial impact.

c. Promoting Ethical Decision-making

Rest argues that four distinct capacities need to be present in making ethical decisions.^[892] These are recognition of ethical issues, judgement in identifying ethical actions, motivation to act accordingly and character to see the action through. The difficulty of imparting these capacities through education and training rises sequentially. Recognition and judgement are relatively easily addressed, while building motivation and character are more difficult.

Recognition of ethical issues is a standard educational outcome that can be devel­oped by problem questions and simulated exercises.^[893] Judgement can be built though the same process, by discussion and by analysis of choices. Motivation to behave ethi­cally may flow from development of the previous two capacities. It could be developed by positive reinforcement, for example, the approval of peers and the support of the wider profession. It might also be enhanced by awareness of the importance of ethical action and by the wider environment.

The most difficult to develop of the four capacities of ethical decision-making identified by Rest, is character. Character describes a person’s very nature. It includes various elements, attributes, traits and qualities, such as integrity and courage. These constitute the moral strength of an individual. These dispositions are obviously very deep rooted by the time legal education and training begins. It might be argued that character can only be marginally affected by the process.

d. Promoting Moral Agency

Many academics have argued that ethical legal practice requires more than simply following rules of conduct. Simon argues that practitioners must be trained to act as moral agents rather than simply to follow the professional code.^[894] This is especially so when professional norms become advisory, as with the ‘indicative behaviours’ of Outcomes Focused Regulation, rather than mandatory, as with conduct rules.

It has been argued that developing moral agency would require novel educational regimes. One proposal for such regime is based on a ‘communitarian’ ethical model operating ‘holistically’. Communitarian models build on concepts such as reflexivity to develop understanding of the perspectives of others through dialogue.^[895] Their aim is a ‘negotiated ethic’ offering greater congruence between professional ethics and personally held values.^[896]

e. Promoting Higher Standards

There are limits to what education and training can demonstrably achieve. It may be possible to reduce complaints, for example, by attempting to build empathy with clients or focusing attention on effective client care. This may not affect the rates of disciplinary offending, which may be unconnected to ethical awareness.^[897] Arthurs showed that 80 per cent of serious disciplinary proceedings in Canada involve lawyers who have been qualified for 11 years or more.^[898] This suggests that factors other than education and training are at play. This is, however, no reason not to try to influence future behaviour.

f. Promoting Relevant Values

The values of legal education, like the legal system, reflect wider political, economic and social values. This is reflected in Kronman’s assertion that US legal education should be underpinned by the ultimate value of democratic individualism.^[899] There are various ways that the values implicit in liberal democracies, such as the US and UK, can be classified. Barber characterised the US political system as the co-existence of three dispositions, anarchism, realism and minimalism. These dispositions reflect responses to the possibility of political conflict.^[900] Anarchism denies conflict, realism represses conflict and minimalism tolerates conflict.

Barber’s analysis provides a sketch of the relationship between dispositions, values, and institutions. Americans, he says, are

anarchist in their values (privacy, liberty, individualism, property, rights); realists in their means (power, law, coercive mediation and sovereign adjudication) and minimalists in their political temper (tolerance, wariness of government, pluralism, and such institutionalizations of caution as separation of powers and judicial review).^[901]

To a large degree this assessment applies equally, although probably not in the same way, to the UK.

The values currently promoted by legal study in England and Wales are not for­mally articulated and may not be well understood. This position contrasts with that in the US. A report by the American Bar Association task force (The MacCrate Commission), proposed four key professional objectives for legal education in American universities.^[902] The objectives were providing competent representation, promoting justice, fairness and morality, maintaining and improving the profession and taking personal responsibility for one’s own professional development. These objectives are consistent with Kronman’s notion of democratic individualism. Their vocational flavour is explained by the fact that US law degrees are postgraduate and students are therefore more committed to legal careers.

There are many other contenders for the values that legal education should promote. Cownie emphasises broader educational values, singling out the capacity for criti­cal self-examination.^[903] Webb proposes integrity, loyalty and respect for others.^[904] In Australia, Evans and Palermo suggest personal values such as honesty, and moral values such as truth and justice.^[905] Arguments for articulating values are numerous. It is arguable that, otherwise, hidden and potentially harmful values prevail. Specifying values makes it possible to devise an appropriate curriculum. This facilitates monitor­ing success in imparting values and adjustment of strategies if necessary.

g. Promoting Development of Professional Ethical Regimes

One potential aim of a legal ethics curriculum that is rarely promoted by stakeholders is that of increasing individuals’ propensity to promote changes in professional norms. The proposition is that professional rule-making would benefit from an environment that encourages local discussion and reflective judgement rather than conformity.^[906] This is arguably necessary if professional ethics are to reflect the everyday experience of practitioners.

Experience in the US suggests that effective participation in discussions of profes­sional responsibility is encouraged by a broad programme of initial education. It could include exposure to practical experience supported by suitable instruction.^[907] Debate should embrace professional policy issues, like access to justice.^[908] Such discussions might replicate an ideal professional community, implying ‘integration, shared symbolic experience and self-regulating activities groups and institutions’.^[909] Such an environment should be dedicated to achieving the individual pursuits of rationality, autonomy and a greater social good.

ii. Perspective

Brownsword, an early supporter of teaching ethics on degree courses,^[910] highlighted a range of possible approaches.^[911] These reflect different theoretical positions: legal ide­alist, intersectionist, contextualist and liberal. As discussed above, the liberal position predominates in British universities. The liberal legal education does not prepare for a specific vocation, but produces cultivated individuals with a deep understanding of law and a critical view of social institutions informed by ethical perspectives.

Legal idealists see law itself as a moral enterprise. Methods of legal and moral argumentation are therefore inevitably linked. The legal idealist would explore the moral dimension of law, even though teaching from a positivist base is inevitable. The intersectionist identifies instances where legal and moral issues intersect and the elasticity of legal argumentation in such circumstances. Contextualists view Law in the economic, social, political or ethical circumstances in which legal problems arise.

Brownsword argued that the contextual or liberal approach might see the role of lawyers in delivering legal services as an essential part of understanding Law. The idealist and intersectionist approaches are more consistent with exploring the moral dimensions of Law ‘pervasively’, rather than as a subject. None of the approaches necessarily provides for students whose interests are primarily vocational. On encoun­tering this pervasive ethics, they might object that they chose to study law, not moral philosophy.^[912]

Another problem of perspective is highlighted by Arthurs.^[913] He identifies two main views on professional ethics as a discrete academic subject; from the ‘inside out’ or from the ‘outside in’. The ‘inside out’ approach involves studying ethics codes to master the norms of professional practice. This, the approach normally taken on vocational courses, Arthurs describes as naive and superficial, often the first response to the demand for an ethics curriculum. This view is supported by Bundy, who described the first wave of US ethics courses as ‘legalistic, stressing the external rather than the internal regulation of lawyers’.^[914]

Viewing professions from ‘the outside in’ is a better fit with academic Law. This involves a more critical approach. Arthurs’ concern is that showing the profession’s record, warts and all, may normalise or legitimise unethical behaviour in the minds of students. This argument seems dubious. It seems arguably necessary to anticipate and confront problems with ethics, as well as ethical problems, if one is to effectively socialise a profession.

The conundrum that Arthurs poses raises the issue of whether lawyers should be prepared so as to enter the world as it is, or be prepared in such a way that they can change it.^[915] The ‘inside out’ perspective reflects ‘replicative models’ of teaching ethics. This involves learning what the codes say, an approach that cannot promote change. The ‘outside in’ approach should promote discussion of the notion that professional­ism is a worthy tradition deserving support.^[916] It should also provide the perspective, language and tools to change the existing order and produce professionals equipped to lead change. It can therefore be seen as a ‘transformative model’ of ethical education.^[917]

iii. Content

Where professional bodies specify ethics requirements for degree courses they usually ensure that the main professional duties, like duties of confidentiality and conflicts of interest, are covered. To these are sometimes added detail reflecting local concerns. For example, in Canada, the requirement that students have ‘an awareness of the importance of professionalism in dealing with clients, other counsel, judges, court staff and members of the public’, appears to be a response to a specific problem.^[918] Educational schemes can also be broader than simply specifying specific conduct rules and general behaviour. Canadian students, for example, are required to under­stand ‘the importance and value of serving and promoting the public interest in the administration of justice’.^[919]

Whatever minimal requirements for the study of ethics are imposed by professions, the content of the programme of study can be broadened to complement an ‘out­side in’ perspective. Students could, for example, explore professions as intermediate bodies in civil society and empirical evidence of workplace studies. They may then better understand the impact of stress, competition, authority, peer and time pres- sures.^[920] Relevant materials might include authoritative documents, legislation, cases and codes, socio-legal scholarship, empirical studies of different practice fields and interdisciplinary scholarship.

iv. Teaching and Learning Methods

a. Discrete and Pervasive Teaching

The issue of how to deliver the ethics curriculum has been a topic of debate. In the US, discussion focused on whether professional ethics should be a discrete subject, taught separately in its own right, or a ‘pervasive’ topic taught throughout law degrees. The problem with the pervasive method is that the treatment of ethics is not weighty or developed enough to be taken seriously. As Rhode says, ‘there is no place in which stu­dents and institutions confront in any probing and systematic way, the central ethical concepts, institutional and political understandings and regulatory alternatives that underline all areas of professional ethics and regulation’.^[921] In short, the probability is that ethics is not dealt with properly anywhere, and possibly not at all.

The risk with legal ethics being a subject is that it takes one of two equally unprom­ising directions. The first direction features a kind of ‘moralising’ that is seen as irrelevant to technical law. The second becomes a case of learning rules, with limited assistance to ethical development. In extreme cases the rule-based courses can be a training in ‘unethics... the careful delineation of precisely how far the lawyer can go without disbarment, with copious suggestions on how to do things lawyers ought not to be doing’.^[922]

Integrating the subject and pervasive approaches may help to address some of the weaknesses inherent in the different approaches. In this way, ‘system ethics’ can be dealt with pervasively and professional ethics taught as a subject. This strategy provides a platform of knowledge and understanding of ethical responsibilities, but may have little impact on improving students’ ethical judgement.

b. Communities of Practice

In the past 10 years, economy, effectiveness and efficiency reasons have driven employers to foster learning environments in the workplace. One approach has been to form groups, sometimes called communities of practice. This term was originally coined to explain situated learning, or how newcomers to professional communities learned about the social structure of communities from the periphery.^[923] It is often used to describe group learning within cognate professional areas.^[924] Such schemes could very easily be integrated into law firm operations as a part of daily routine. One case study describes how a department in a law firm analysed Employment Tribunal decisions and applied them to ongoing cases.^[925] It would not be difficult to envisage such a model incorporating analysis of ethical issues.

p. Achieving Diverse Aims

Some methods of teaching and learning may be more successful than others in achiev­ing educational aims. Most aims depend on some systematic programme of learning about appropriate values. There are however, aims of ethical programmes that are more ambitious but which may be considered essential. Prominent among such aims are promoting ethical decision-making and the capacity to engage in ethical debate.

a. Promoting Appropriate Values

Values are often part of a ‘hidden curriculum’. A simple example relates to sensitivity to the perspective of others. This is seen as a necessary prerequisite of ethical action and is part of the aspiration of the legal profession to promote equal opportunity. The way in which courses are delivered explicitly and implicitly promotes values that promote such goals, such as appreciation of diversity. Law Society longitudinal research found that good integration was important to the success of group work^[926] but that, in some institutions, students from different ethnic backgrounds only worked with each other.^[927] This suggests that action is often necessary to promote taken for granted values.

b. Promoting Ethical Decision-making

Aristotle proposed that the capacities required for ethical action, particularly motiva­tion and character, are most successfully developed when deployed habitually in role. One way of providing this kind of experience is though clinical legal education, with students working with real clients from an early stage in their legal education. In this environment, every step ‘can be the object of the most painstaking planning, reflection and review’.^[928]

One of the advantages of teaching ethics though the medium of clinical education is the opportunity it provides to perform a real-life role under supervision. This facilitates discussion of the difficulties, dilemmas and temptations that arise in legal practice. Exposure to these problems may be more successful in an educational setting than the workplace, where outcomes are less certain. This depends on the availability of teachers familiar with both current practice and ethical issues to ensure that experience is put to best use.^[929] Clinical instructors sometimes pass on bad habits or cynical attitudes to professional responsibility.^[930]

Schon argued that professional students cannot be taught about professional practice but can be coached, seeing for themselves the relationship between means, methods and results.^[931] His notion of ‘reflective practice’ is predicated on one-to-one coaching, whereby professional learners are inducted into the ways of thinking of practitioners. Stimulating reflection of this kind can be difficult in an educational setting.^[932] Kupfer provides an engaging account of her attempt to do so through the clinical programme in a US law school.^[933] She describes how the case work of students often produces stimulating material for ethical reflection, enabling them to make ‘self­determined, responsible, self-reflective and critical judgements about themselves and their work’.^[934]

c. Capacity to Debate Ethical Issues

The capacity to debate ethical issues is an essential prerequisite of practitioner involvement in developing professional norms. Kupfer argues that ethics programmes should enable students to critically scrutinise ethical norms and to argue the merits of different perspectives. This arguably requires the ‘holistic’ development of the law student, linking students’ individual experience and values to their developing skills and knowledge.^[935]

vi. Location

There has been considerable debate about the location of legal ethics within the phases of education and training. The decision depends on a number of factors, including the aims to be achieved and the level of commitment to them. Different aims could be allocated to different phases of the process. There are also practical considerations, such as the amount of time and the level of resources available. It may not be feasible, for example, to insist on clinical work or the creation of

communities of practice in the initial stage. It is feasible, however, to expect university students to reject plagiarism and other academic offences.¹⁰¹

An effective scheme for achieving the various aims of education and training in ethics should provide a continuum.¹⁰² This would be a sequence of educational steps involving different types of experience. It would cover the whole process, including practice post-qualification. The initial stage would comprise a critical appraisal of professional ethics ‘from the outside in’. This would consider legal ethics as a core subject, including consideration of the underlying rationale and values of the legal role. The vocational stage could then build on this foundation in practical settings, including simulation and clinical work.

The training and post-qualification phase of legal education would include analy­sis and critical reflection on the experience of practice. It would include Continuing Professional Development activity involving analysis of material related to the specific areas of practice engaged in. This may be based around the idea of a community of practice aimed at raising standards generally.

V.