Teaching legal ethics in context

This guide to teaching legal ethics was produced by Alwyn Jones (De Montfort University) as part of the teaching legal ethics research project. Below Alwyn identifies the key issues in legal ethics teaching – further sections look at resistance to the teaching of ethics, curriculum development issues and teaching methods. A list of references and a set of teaching materials are also included.

Legal ethics can be taught on a number of levels, and the meaning of legal ethics for a particular course depends on its nature and objectives. Some tutors may intend to promote compliance with professional codes of ethics, or to enhance students’ emotional intelligence or moral courage as a way to inoculate tomorrow’s lawyers against a (perceived) harshly anti-ethical climate in legal practice. For others, ethics may be seen as a way to give a clinical course a theoretical underpinning justifying its inclusion in undergraduate law teaching, or as a way to provide students with a vocabulary and supply of concepts with which to reflect critically on their lived experience of clinical work.

Some courses may focus on the ‘black letter’ codes of professional responsibility, others on the legal and socio-economic structures of the legal professional, others on the application of moral philosophy to the work of lawyers, and still others on the awareness of aspects of human relationships or the development of moral judgment.

This guide takes a pluralist approach – it does not advocate any particular model of teaching legal ethics as the ‘preferred’ approach nor does it engage with the debate on whether ethics teaching should be compulsory in law schools. However, some of the main objections to teaching ethics are indicated, so that law teachers preparing to propose to include ethics in the curriculum can address their colleagues’ concerns.

The teaching legal ethics project aimed to provide ideas, options and sources of information for the teaching and learning of legal ethics. We looked at the how and where of ethics teaching, as well as the question of what legal ethics means. It can refer, narrowly, to the codes of conduct intended to regulate the behaviour of lawyers or to the underlying ethical principles and rules of lawyers’ conduct, it can mean the calculation and weighing of the consequences of particular choices, it can involve the moral character, courage and commitment required for a lawyer to exercise good judgment, and it can apply to the arrangements of society for access to legal services. No one right answer to this question will be offered – the meaning of legal ethics depends on the context of the course in which it is taught.

A major factor in determining the definition of legal ethics to be used is the particular learning outcomes a course seeks to achieve. This may involve balancing competing objectives, for example whether the ethics course should produce ‘ethics technicians’, who can apply professional conduct rules with accuracy and precision to problems, or ‘lawyer-philosophers’, who engage critically with their work in the light of moral theory. It may also involve engaging with debates about what a law course can and should achieve. For example, if a course based on virtue ethics is proposed, this must deal with the assumption “that habits of good character can be learned, and that moral virtue is a matter of practice rather than a natural trait” (Webb 2002: 135).

Robertson identified three kinds of learning outcomes in legal ethics teaching (Robertson 2005):

1. The rules approach – reflects “the traditional assumption that professional legal ethics amounts to a rule-based morality and that ethical decision making in legal practice involves applying these rules of professional responsibility”.
2. The skills approach – “asserts the importance for lawyers of acquiring skills in (1) recognising and (2) resolving ethical dilemmas” (2005: 227). He links this approach in particular to the teaching of ethics in and through law clinics.
3. The judgment approach – a collection of approaches rather than a single system, linked with a shift in emphasis from a rules-based approach to ethics towards a virtue-based approach. It is associated with critiques of rule-based approaches to ethics and the reliance for guidance on ethical behaviour on professional codes of conduct (Robertson 2005: 228).

Webb has gone further, identifying pedagogic possibilities beyond the debate between teachers of deontological (or duty-based) ethics and teachers of virtue (or character and judgment-based) ethics (Webb 2002). Drawing upon Webb’s work, which has both epistemological and ontological dimensions, law teachers may wish to reflect on (whether) and how we can develop learning programmes which encourage students to take responsibility for their choices, to choose (and articulate) moral values, to be aware of (and engage with) the unconscious and emotional aspects of ethical decision making as well as helping students to be aware of socialisation processes and pressures to conform, before, during and after law school.

Some of the ethics literature, perhaps in response to public horror at situations such as the Watergate scandal and the collapse of Enron, can appear to focus upon how law students might be inoculated against the socialising (and potentially corrupting) pressures of (especially commercial) law practice. Without denying the potential for law firms to have a strong effect on the behaviour of their employees, it is suggested that to focus exclusively on the socialising effect of law firms would be to miss the experiences of socialisation to which students have already been exposed on arrival at university, as well as the socialising effects of legal education.

There is plenty of scope for making explicit the implicit valuing processes in legal education (as well as students’ prior educational experiences). Analysis of this implicit (or explicit) valuing might include reflection on the selection of course content, the mode of assessment and the system for evaluation of students’ work, as well as the messages students receive from their teachers and peers about what is relevant and important.

An ethics-based or clinical course itself may not be able to ‘make lawyers good’, but it can assist law students to become more aware of how they (and the communities to which they have belonged and belong) are engaged in an ongoing process of identity construction. If an ethics course helps students to acquire a vocabulary and a bundle of concepts with which to reflect on the process of becoming a human being and becoming a lawyer (as Webb put it), if they engage with literature on socialisation and learning processes and participate in structured reflection which enables them to connect the concepts and reading with their experience, then ethics courses may contribute to the ongoing process of becoming an independently minded, conformity resistant, emotionally aware, ethically sensitive, responsibility taking person.

Last Modified: 4 June 2010