Making good lawyers - making lawyers good

The ‘making good lawyers – making lawyers good’ stream at the Learning in Law Annual Conference 2007 included the following papers:

• Learning professional ethics: an international perspective on a lifelong process – Sara Chandler (College of Law) and Nigel Duncan (City Law School) read report below
• Making lawyers good: does the St Thomas model have a prayer of succeeding? – Scott Taylor (University of St Thomas, USA) read report below
• Mediating the law school curriculum – Kartina Choong (University of Reading) read report below
• Moral psychology, moral character and law clinics – Donald Nicolson (University of Strathclyde) read report below
• Standardised clients and the assessment of interviewing skills – Karen Barton and Paul Maharg (Glasgow Graduate School of Law) read report below

Learning professional ethics: an international perspective on a lifelong process

There is growing interest in addressing perceived deficits in the ethical behaviour of legal professionals, a concern which is alive in many jurisdictions. Sara and Nigel have been working in developing curriculum approaches and learning methods to address this issue and ran a series of workshops at the 2006 Global Alliance for Justice Education conference in Cordoba, Argentina.

The workshops addressed a number of related themes covering undergraduate and vocational education and the continuing development and assessment of professionals. They focused on how to achieve the most out of clinical experience, both for clinic students and in providing resources for students unable to gain clinical experience directly, and on the values and attitudes of professionals at different stages of their careers.

How are professional ethics learned in other jurisdictions? Essentially, everyone does it differently, it seems! A theme emerged at the GAJE conference of seeking to create communities of ethical lawyers. One approach discussed was bringing together law students working with NGOs to provide an environment for learning. The induction of law students into a different ethos, raising the tricky question of who is the client (the NGO, the community or the individual) provides a rare richness to the learning of professional ethics.

How should lawyers deal with challenging ethical behaviour? LILAC participants considered responses drawn directly from the experiences of practising lawyers, giving food for thought to those who have ever said: “tell them I’m in a meeting” when avoiding a call from an unlikeable client! Used with students this exercise aims to increase their confidence in dealing with ‘real life’ situations, enabling them better to withstand the erosion of what they learn at the start of their careers by the cynicism of some, often more senior, practitioners.

Making lawyers good: does the St Thomas model have a prayer of succeeding?

In August 2001 the University of St Thomas in Minneapolis, a Catholic institution, opened its new school of law with great hope and optimism, focusing on “integrating faith and reason in the search for truth through a focus on morality and social justice”. This mission statement reflects a desire to ‘make lawyers good’ and thereby make the world a better place. We have begun to describe this hoped for societal transformation as the ‘St Thomas effect’.

The curricular architecture contains features designed to promote the moral formation of future lawyers:

• staff are encouraged to integrate questions of faith and morality into their teaching
• a mentor externship programme pairs law students with practising lawyers – students observe real legal events, meet with their mentor and reflect on the legal, moral, and ethical concerns
• all students are required to donate 50 hours of service to the community in either law or non-law placements
• a seminar on ethical leadership is included in the curriculum, and will soon build to a three course sequence focusing on the moral formation of leaders
• a centre for the study of ethical leadership has been created
• a foundations course on social justice is being developed
• need-based student loan repayment assistance is provided to encourage graduates to pursue careers promoting social justice

This emphasis on moral formation may also enhance legal education by improving student motivation and the emotional environment of learning, developing lawyers with a sound, sustainable sense of direction and professional ethics.

For Scott, lawyering can be defined as “problem solving in a legal context with a moral compass”. While the concept of faith-based legal education may be largely unfamiliar, and Scott was candid in telling us that a few of his students found it unwelcome (“this is a law school not a seminary – cut the faith crap”), the university does not presumes a person’s moral compass must derive from faith – it accepts that it can have a secular source. Having a compass counts more than where it comes from.

Catholic or not, it seems St Thomas’s current and past students feel the benefit from the way they learn how to be lawyers. Scott quoted internal surveys showing that current students feel they will be able to follow their compass in practice, and that graduates too not only thought their moral compass was strengthened by attending law school but also that they had been able to be true to it in practice. External surveys demonstrated that St Thomas’ students are above the norm in how they perceive the development of their personal codes of values and ethics, their contribution to the community and their development of a deeper sense of spirituality.

Mediating the law school curriculum

The limitations of the adversarial system of dispute resolution are receiving wider acknowledgement from the legal community and attention is increasingly drawn to non-judicial means of dispute resolution. Mediation is becoming increasingly popular as an important element of this non-adversarial trend, with several universities teaching it as part of their postgraduate courses on alternative dispute resolution (ADR) and short term training on offer leading to accreditation as a mediator.

This trend begs an important question – if knowledge of mediation constitutes a significant part of the lawyer’s toolkit, why is it not currently part of the undergraduate legal curriculum?

Providing mediation in the law degree would sensitise students to the existence and comparative strengths of this non-judicial and non-adversarial avenue for dispute resolution from early on in their legal training, warming them up to the idea of adopting mediation rather than litigation as their first port of call when advising clients in the future. Students would not then perceive mediation as something that threatens or sidelines their advocacy skills but as something that complements their skills as legal advisors.

Obstacles do exist to the idea of incorporating mediation into the law programme, such as the dearth of available resources and the lack of law lecturers with adequate training or research interest in mediation. Other challenges can be identified in terms of the possible contents of the course, teaching and learning methods, pre-requisites and co-requisites and methods of assessment.

Moral psychology, moral character and law clinics

Donald’s paper drew on recent work in moral psychology to support the philosophical argument that, unless lawyers develop the sort of instinctive and spontaneous responses to ethical problems in practice which characterise moral character in general, ethical behaviour by lawyers is always going to be difficult to guarantee.

Drawing on Rest’s insight that moral behaviour requires moral insight, judgment, commitment and character (or more specifically moral courage), he argued that alternative developmental approaches, most notably that of Kohlberg, fail to reach all four psychological components required for moral conduct. By contrast, an approach which concentrates on developing moral ‘expertise’ through experience and a form of ‘moral apprenticeship’ are far more likely to ensure that young lawyers become committed to act morally and have the courage to do so in the face of the many contrary pressures that characterise contemporary legal practice.

If true, then it becomes clear that teaching ethics merely through didactic teaching or even Socratic dialogue will not be enough to the necessary professional moral character in prospective lawyers. Instead, what is additionally required is actual involvement in legal work through law clinics. While this reduces the number of students who will start the process of professional character development, it will ensure that for those who are involved learning will be deep rather than superficial. Moreover, by adopting the type of law clinic which focuses on providing access to justice through voluntary work, more students can be involved and for longer periods, and will be more likely to develop pro-social attitudes, than is usual with orthodox clinics which focus on teaching legal skills or legal knowledge.

Standardised clients and the assessment of interviewing skills

Glasgow Graduate School of Law (GGSL) uses ‘standardised clients’, lay people trained to act as clients and to assess students, in the teaching of interviewing skills on the Diploma in Legal Practice. Standardised clients has been used for many years in medical education, where standardised ‘patients’ are routinely used to assess students’ patient care skills.

Standardised clients were introduced in the attempt of resolving past problems in teaching and assessing interviewing skills, coupled with a survey revealing that clients were not happy with the quality of solicitors’ interviewing techniques. It would seem that solicitors do not see clients as a ‘whole’ person, however using the standardised client method, the ‘client’ assesses the interview from the client point of view.

During the early stages of using standardlised clients the interviews were also videotaped and assessed in the usual way, by tutors assessing the tapes. No major discrepancy was found between the marks awarded using the two methods.

Students valued the use of standardised clients as salient towards learning what the client thinks and feels.

Last Modified: 9 July 2010