Teaching legal ethics: materials

Materials for teaching legal ethics, developed as part of Teaching legal ethics in context, a guide to teaching legal ethics by Alwyn Jones (De Montfort University). Further teaching resources can be found in chapter 6 of Maughan & Webb’s Lawyering skills and the legal process (Cambridge: University Press, 2005).

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The materials listed below can be used ‘as is’ or re-used as required – we just ask you to acknowledge the source:

• short client interview
• discussion starters:
  • the ethics of lawyer-client relationships
  • the meaning of legal ethics
  • ranking quotations
• balloon game on ethical duties
• ethics code negotiation exercise
• writing a reflective critique of a clinical experience

Short client interview

This simulation activity helps students to identify for themselves the need for answers to ethical questions. It is also intended to make them aware of the resources they have already used to engage with ethical choices in their own lives (explicitly or implicitly), and which can be applied to ethical dilemmas in lawyering.

Lawyer’s instructions:
You are scheduled to meet James/Jane, a client charged with theft and criminal damage, for the first time. You are 30 minutes late in arriving because you had to catch a bus to work. You had to catch a bus to work because your car, a three year old silver Ford Focus, was broken into last night. It was parked outside your house, in Leamington Road. The windows were broken and the stereo was stolen, so you had to take it into the garage this morning. You were very upset, but you know that you will have to be professional and focus on your client’s situation.

Client’s instructions:
Your name is James/Jane. You were arrested by the police yesterday and charged with theft and criminal damage. It was the first time you have been arrested, and you feel confused and unsure about what is going to happen next.

Yesterday you broke into a car and stole the stereo. If you are asked about the car, you will tell your lawyer the truth – it was a new, shiny white Mercedes parked on Coalville Avenue. You know that the police know that you broke into the Mercedes. You want to know what will happen next.

(You will not tell your lawyer the following until later in the interview, and when you do tell her/him, see the next paragraph for information on how to do so. Later on, you broke into a three year old silver Ford Focus parked on Leamington Road and stole its stereo. You are not sure if the police know that you broke into a second car as well).

You want to know if you should confess damaging and stealing from the second car. You think that maybe the police will be more lenient if you cooperate, but maybe they will press for a tougher sentence if they know that you broke into two cars, not one. You want your lawyer’s advice on that. But you feel reluctant to admit to your lawyer that you broke into the second car – what if they tell the police.

So, before disclosing that you stole from a second car, ask your lawyer if everything you say will be kept confidential. If they do not explain what confidentiality means, then you will ask what it means. Then, when you have checked confidentiality, you will ask this question: “Hypothetically, if I broke into a second car last night and the police don’t know about it, would it help me if I cooperate with them by telling them about it?”

Only after the lawyer has responded to this will you let slip that the second car was a silver Ford Focus, parked on Leamington Road, and that it was about three years old.

Discussion starters The ethics of lawyer-client relationships

Ask students are asked to form small groups and rank the following relationships according to their similarity or difference to lawyer-client relationships:

• A: parent – child
• B: tutor – student
• C: friend – friend
• D: employee – employer
• E: seller – purchaser
• F: counsellor – client
• G: doctor – patient
• H: trustee – beneficiary

The meaning of legal ethics

Before the class ask students to identify their preferences from the following options and to come to class prepared to explain and defend their views.

A or B?

• A: Ethical issues only arise sometimes in lawyer-client relationships.
• B: Whenever a lawyer meets a client there will be ethical issues.

C or D?

• C: When lawyers act unethically, they do so because they don’t understand the rules of moral behaviour.
• D: When lawyers act unethically, they do so because they lack moral courage to do the right thing.

E or F?

• E: Ethical behaviour is about following moral rules.
• F: Ethical behaviour is about achieving the greatest happiness for the greatest number of people.

G or H?

• G: Studying lawyers’ ethics is about working out which rules lawyers should follow.
• H: Studying lawyers’ ethics is about how lawyers’ values show how they should behave in their work.

Rank quotations

Ask students to form small groups and rank the following quotations from the one they agree with most to the one they disagree with most. (Quotations from Linowitz and Mayer’s The betrayed profession: lawyering at the end of the twentieth century (Baltimore, MD: John Hopkins University Press, 1994).)

1. About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop. (Elihu Root, lawyer and US Secretary of State)
2. Lawyers are hired guns: they know they are, their clients demand they be, and the public sees them that way…Instead of seeking to justify their actions by reference to process values that allegedly produce truth and justice, lawyers must concede – indeed, affirm – that they actively promote the objectives of their clients. (Richard L Abel, Professor of Law at the University of California at Los Angeles)
3. Able lawyers have, to a great extent, allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people. We hear much of the ‘corporation lawyer’ and far too little of the ‘people’s lawyer’. (Louis D Brandeis, corporate lawyer in Boston and later associate justice of the US Supreme Court)
4. The aggressive posture we have taken regarding depositions…continues to make these cases extremely burdensome and expensive for plaintiff’s lawyers. To paraphrase General Patton, the way we won these cases was not by spending all of Reynold’s money, but by making that other son of a bitch spend all of his. (lawyer for RJ Reynold’s & Co, describing his firm’s tactics used to get plaintiffs (claimants) to drop tobacco cases)
5. Around here, everybody pretty well honours the t’ain’t fair rule. If another lawyer tries to take unfair advantage, you go up to the judge and say ‘T’ain’t fair, Judge’ which is usually enough. When you call another lawyer and agree on something, you don’t worry that you have to get it in writing. (John S Moore, lawyer in Yakima Valley, Washington State, USA)

Balloon game: ethical duties
This exercise aims to encourage students to reflect on the duties lawyers should follow and why they matter (or don’t matter).

Ask students to form small groups and to imagine they are travelling in a hot air balloon unable to sustain its height. To keep aloft they need to let go of weights attached to the balloon. These weights are represented by ten ethical principles or duties for lawyers. The students have to give up first one of these principles, and eventually all of them.

The students should rank the following lawyers’ duties in order (with 1 as the most important and 10 as the least important), and give their reasons for the ranking:

1. Be available to any client.
2. Represent clients competently.
3. Represent clients zealously.
4. Charge reasonable fees.
5. Assist in improving the legal system.
6. Keep client confidentiality.
7. Avoid any appearance of bias.
8. Not discriminate against anyone.
9. Always tell the truth.
10. Disclose any weakness in your case to other side.

Ethics code negotiation exercise

The aim of this exercise is to encourage students to exercise ethical judgment in an environment where there is a reward for unethical behaviour.

The students form seven teams (MPs, Liberty, the Crown Prosecution Service (CPS), the Police Federation, the Bar Council, the Law Society, Journalists) to negotiate the terms of a new code of lawyers’ ethics (that this code would apply indiscriminately to solicitors and barristers in jurisdictions with an undivided profession is deliberately provocative).

The exercise is made up of three rounds. In each round the teams negotiate and are then asked to vote for two options on two rules. The teams are presented with the options, with an indication of whether their team has a preference or is neutral (see below) – during the negotiation time they must persuade neutral teams to vote with them. They can win the support of neutral teams on the merits of their argument or in exchange for a subsequent vote for the other group’s position (on a rule for which they are neutral). In each round of voting they can carry out their promises or default on them. (Teams might choose to sanction defaulting teams by voting against their preferred outcomes in subsequent rounds.)

Team	Rule 1	Rule 2	Rule 3	Rule 4	Rule 5	Rule 6
MPs	neutral	A	neutral	B	neutral	A
Liberty	neutral	B	neutral	A	neutral	B
Crown Prosecution Service (CPS)	B	neutral	B	neutral	A	neutral
Police Federation	B	neutral	B	neutral	A	neutral
Bar Council	A	neutral	A	neutral	B	neutral
Law Society	A	A	A	B	B	B
Journalists	neutral	neutral	neutral	neutral	neutral	neutral

Team voting positions

Note: the Journalists can only be persuaded on principle, as they are always neutral. The Law Society can only persuade others on principle, as they are never neutral.

The negotiations might take place as follows:

• the CPS offers to vote B on rule 2 if Liberty vote B on rule 1 – that happens
• the CPS persuades both the MPs and Liberty to vote B on rule 3, agreeing to follow their voting preferences on rule 4
• the MPs and Liberty want the CPS to vote differently on rule 4, so the CPS has to default on one of their promises on rule 4
• whichever group is let down could vote against the preferences of the CPS on rule 5

Timetable (minutes):

• 0–10: instructions
• 10–20: negotiation 1
• 20–30: voting on rules 1-2
• 30–40: negotiation 2
• 40–50: voting on rules 3–4
• 50–60: break
• 60–70: negotiation 3
• 80–90: voting on rules 5–6
• 90–110: discussion and reflection

Round 1: Lawyer control or client control?

• A: Lawyers must act in the best interests of their clients according to their own independent judgment.
• B: Lawyers must carry out their client’s instructions to the best of their ability.

Round 2: Non-discrimination

• A: Lawyers must not discriminate against anyone on grounds of race, colour, ethnicity, nationality, sex or sexual orientation, and must not discriminate unreasonably or unfairly on the ground of disability.
• B: Lawyers must not discriminate against anyone on grounds of race, colour, ethnicity, nationality, sex, sexual orientation or disability.

Round 3: Confidentiality

• A: Lawyers must keep client information confidential. However, a lawyer may disclose information in any of the following circumstances:
• the client consents
• the lawyer is being used to assist in the commission of a crime or fraud
• the lawyer reasonably believes that it is necessary to prevent serious bodily harm
• the lawyer believes that the threat to a child’s life or health is sufficiently serious to justify a breach of confidentiality
  B: Lawyers must keep client information confidential. However, a lawyer may disclose information if the client consents. Lawyers must disclose information in the following circumstances:
  the lawyer is being used to assist in the commission of a crime or fraud
  the lawyer reasonably believes that it is necessary to prevent serious bodily harm
  the lawyer believes that the threat to a child’s life or health is sufficiently serious to justify a breach of confidentiality

Round 4: Accepting instructions

• A: Lawyers must act for any client who wishes to employ their services.
• B: Lawyers are free to act or decline to act for any client they wish.

Round 5: Fair negotiation

• A: Lawyers must act fairly and honestly in negotiations. They must not mislead the court.
• B: Lawyers must act fairly and honestly in negotiations. They must not knowingly or recklessly mislead the court.

Round 6: Conflict of Interest

• A: Lawyers must not act if this would involve them in a conflict of interest.
• B: Lawyers must not act if this would involve them in a conflict of interest. Lawyers may avoid conflicts of interest using information barriers.

How to write a reflective critique of a clinical experience
Why engage in reflection?

“The notion that learning involves reflection which should lead to exploration and modification of theories of action is well established in experiential learning and other cognitive theories, as is the integration of knowing and doing.”

— (Maughan & Webb, Teaching lawyers’ skills, 1996)

1. What was your overall perception of the experience? What happened and what did you feel about what happened?
2. What were the reasons for your perception of the experience? How did it happen, and why did you feel that way about the session?
3. Evaluate the evidence for your perception – ask yourself questions such as: what makes that an important part of the activity? What were the important choices that you made and what were the effects of those choices?
4. Critically evaluate the experience, using your understanding of theory – apply the theory from class and from your reading to the experience you have had. (‘Theory’ includes both your understanding of how you should carry out the task effectively – theory of good interviewing or advocacy – as well as how you should carry it out ethically – your understanding of lawyers’ ethical duties as they may apply). What was the reasoning behind what you did? (You may have begun to examine this in stage 3.) Was there evidence of ‘discrepant reasoning’ – a difference between what you believed you should do, and what you actually did?
5. Critically evaluate the theory, using your experience – ask yourself to what extent, having applied the theory to your experience, you have identified problems with the theory, or a different understanding of it. To fully explore this you should explore possible ways of resolving any problems, such as internal conflicts or unclear concepts, in the theory that you have discussed.

How we assess reflection

We will consider the following factors:

• your ability to discuss your experience in depth, not just a superficial understanding
• your capacity to evaluate what you did in relation to your understanding of what you should have done (your understanding of ethics as well as the theory of interviewing or advocacy)
• your ability to show how you would adapt your techniques, strategies or theories in the future, bearing in mind your developing understanding of the theory in the light of your classes, reading and experience

Last Modified: 4 June 2010