Integrating ethics into the curriculum

In this section of his guide to teaching legal ethics Alwyn Jones (De Montfort University) looks at integrating the wider ethical context into the curriculum.

“The ‘ethics’ in legal ethics is not merely about being a morally good person. It is also about being a professionally safe lawyer.”

— Gillers 1995: preface xiii

In addition to enabling students to develop problem solving and critical analysis skills, studying legal ethics helps them to analyse problems and issues from multiple dimensions. Suppose in a tort, criminal, family or housing law course students are presented with the following problem:

1. Steve and Clare have been in a relationship for five years and joint tenants of a property owned by De Montfort City Council for two years. Steve left the property one month ago and moved in with friends.
2. Last week Clare returned home to find Steve sitting outside the house in his car with the engine running. He stared at her as she went inside and she felt afraid.
3. During this week Clare has received a series of silent telephone calls which she believes came from Steve.
4. Last night Steve saw Clare leaving a pub with another man. Steve ran towards Clare, shouting abuse at the top of his voice. Clare felt shocked and afraid. She slipped on the greasy steps and injured her head on the ground.
   Advise Steve.

Traditionally, students would be expected to identify the issues, state the precise legal principles from relevant legal sources and apply them to the facts. In a module incorporating legal ethics students could also consider ethical dimensions to the case. Suppose Steve told his lawyer of his intention to hurt Clare if she brought legal proceedings against him or told the police. Would the lawyer be obliged to keep this information confidential?

If the problem was presented in a clinical setting, in a simulated client interview, that would add an extra dimension. Students could consider the difficulties involved in interviewing a client such as Steve in a client-centred way. In the context of this case, students might be asked to consider the validity of the following provocative statement by Elihu Root (US Secretary of State 1905–09):

“About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.”

— Elihu Root, quoted in McCandless v Great Atlantic and Pacific Tea Co, 697 F.2d 198, 201-2 (7th Cic. 1983): Gillers 1995: 20

Legal ethics can have a much wider remit than the study of the proper moral choices of lawyers when they face ethical dilemmas. It can embrace the choices made by society for the delivery of legal services and the socio-economic pressures which can shape the behaviour of legal professionals.

An excellent example of this wider approach is provided by O’Dair’s (2001: 5-6) definition of legal ethics as rhe critical consideration of:

1. The arrangements made by society for the delivery of legal services and in particular of the legal profession, its structure, roles and responsibilities (sometimes termed macro legal ethics).
2. The roles and responsibilities of individual lawyers in the provision of legal services together with the ethical implications of those roles (sometimes termed micro legal ethics).
3. The wider social context, especially the philosophical economic and sociological context in which lawyers work, with a view to identifying and, if possible, resolving the ethical difficulties which face professional lawyers so as to enable them to view legal practice as morally defensible and therefore personally satisfying.

What O’Dair calls macro legal ethics has been the subject of significant and increasing attention:

“One of the most striking changes in the legal world over the past two decades has been the increasing attention to professional responsibility and regulation. Issues concerning the ethics of lawyers have become matters of broad concern, both within and outside the profession.”

— Rhode & Luban (2001: introduction xiv)

Those teaching law students about the legal profession might want students to reflect critically on the ‘how’ and ‘why’ of legal ethics. Where professional codes are discussed, these can be critiqued according to the extent to which they conform to the ideal types of ‘aspirational codes’, which prefer general guidance to detailed direction, or ‘disciplinary codes’, which tend to be lengthy, detailed and supported by the threat of sanctions (Nicolson 2005: 606).

In engaging with the ‘why’ of legal ethics in relation to professional codes, students might be expected to question whether such codes are an unqualified good, and to evaluate ‘professional conspiracy’ theories, which might hold, for example, that ethics is a vehicle for lawyers to defend their monopoly status on legal work, their social status and income. There is scope here for valuable interdisciplinary connections, drawing for example on sociological debates between structuralist functionalists (who hold that professions are formed because society needs the expertise of the professionals) and conflict theorists (who take the position that professionals are a means to gain market control of their service area (Corbin 2005).

Students might also be expected to test the theory that ethical codes are proposed by the legal profession as a way of deflecting pressure for legislative intervention when serious corruption or malpractice involving lawyers is exposed (Arthurs 1998). Students might be encouraged to study the work of institutions that hold lawyers to account in their jurisdiction, with particular attention to the likely efficiency of such institutions, especially if they are also responsible for promoting and defending the interests of lawyers. In addition to the politics of regulation and the limits of regulatory structures, students could be invited to examine the changing culture and nature of legal practice. For example, Linowitz & Mayer have argued that the expansion of commercial firms and emergence of international law firms has had a significant impact:

“As late as 1975, there were fewer than four dozen firms with more than a hundred lawyers, totalling 6,558 lawyers in all; by 1993 there were more than 250 such firms totalling more than 66,700 lawyers. Today, many of these firms have large numbers of partners scattered all over the United States, Europe, Latin America, the Middle East, and Asia, and several times as many associates as partners; contacts are formal, structured, rare… A world in which partners don’t know each other is not a world that nourishes professional standards. Lawyers can’t know much about what their partners are doing three thousand miles away – but they can read the numbers that show how profitable that office is.”

— Linowitz & Mayer (1994: 27-28)

As Arthurs has shown (1998), critical examination of the goals and effectiveness of professional regulation may subvert other goals, such as any attempt to commit students to obedience to their professional code in future legal work:

“If legal ethics are taught rigorously and honourably, this must be done with a full understanding of the context, with an appreciation of how professional discipline is actually administered and, more generally, of the professional’s role in society. However, to contextualise is to subvert…Teaching ethics with a full awareness of how discipline is exercised will hardly reinforce professional solidarity or promote respect for the institutions and symbols of the profession, including its ethical code.”

— Arthurs 1998: 117

Ethics can be built into a number of the modules included in most undergraduate law degrees:

• a course on legal system and profession could emphasise O’Dair’s (2001) ‘macro legal ethics’
• a course on contract, consumer or tort law could emphasise the legal consequences of particular decisions – O’Dair’s ‘micro legal ethics’
• a course on legal philosophy, economics and law or the sociology of law could include O’Dair’s third category of the wider social context

Last Modified: 30 June 2010