Making choices about lawyers' ethics: integrating an ethical dimension into a simulation

In this article from the Autumn 2007 issue of Directions Alwyn Jones and Omar Madhloom (De Montfort University) describe the teaching of ethics on a clinic-based module, based on a simulation exercise involving students in making an ethical choice.

Those who teach lawyers’ ethics on undergraduate law courses need to address issues such as the meaning of ethics and the goals of ethics teaching. Lawyers’ ethics can mean different things to different people, but can include the rules and principles of professional conduct, ethical sensitivity and aspects of political theory (including the responsibilities of ‘lawyers as citizens’), philosophy and psychology, and the development of moral courage and commitment. The goals of lawyers’ ethics teaching might include ‘making lawyers good’, promoting commitment to pro bono work or social justice, or encouraging students to think critically.

This article describes the method of ethics teaching used at De Montfort in a clinic-based module during 2007-08, employing a simulation exercise involving students in making a choice with an ethical dimension. Simulations are sometimes regarded as a less than satisfactory form of clinic, perceived as a distraction from working on live cases for the benefit of the community and as less engaging and realistic. We do not seek to deny the benefits of live client work, however carefully designed simulations can provide some of the immediacy of live experience while overcoming its potential shortcomings, such as the limited number of students who are directly exposed to key issues. In a simulation, every student can experience – not just discuss – ethical issues. They can make choices and reflect afterwards on their significance.

The importance of each student making their own choice should not be underestimated. Milgram’s experiments on obedience to authority are well known, and have been linked to the teaching and analysis of lawyers’ ethics. In the experiments participants were asked to subject people to electric shocks (starting with 15 volts and increasing in 15 volt increments to a maximum of 450 volts). Before Milgram conducted his experiments, he asked people what percentage of participants would continue to (apparently) administer electric shocks to a subject (an actor who appeared to be genuinely suffering). Most people responded that few or no people would continue to deliver shocks to the maximum 450 volts, however, when Milgram conducted his experiments two thirds of participants continued to the end.

This is relevant to clinical ethics teaching on a number of levels. Simulations can give students the opportunity to recognise and reflect on cognitive dissonance. Also, as solicitors in private practice are expected to conform to the instructions of their superiors, awareness of psychological pressure towards obedience may help lawyers to seize ‘moments of opportunity’ in which unethical behaviour can be avoided.

In our simulation students use a scenario based on an allegation of racially aggravated assault, taking the role of a prosecution or defence lawyer in a negotiation or advocacy exercise. The scenario instructions comprise a statement of agreed facts, witness statements and special instructions. The students need to select evidence that supports their ‘theory of the case’, while anticipating the probable arguments of their opponent.

In addition to analysing the evidence the students are required to make an ethical choice. This choice is raised by the special instructions, in which the students find that they have received a last minute message from a witness, whose evidence is useful, but not essential. The witness has asked to be excused from giving evidence because of a concern about appearing to betray close friends. The witness also strongly hints that their statement was exaggerated or mistaken. The students must decide whether to use the evidence of this witness.

Some students may defend a decision to use the evidence on the ground that they ‘suspect’ but do not ‘know’ that the evidence is false, so that using the evidence would not involve ‘knowingly’ misleading the court.

This choice – whether to use the evidence or not – can be linked to published work on the limits of zealous advocacy. While the propriety of zealous advocacy by criminal defence lawyers is not often denied, it has been debated – when our students write a critique of their experience they can link it to such debates. The use of a scenario based on racially aggravated assault can also prompt discussion of wider ethical issues. When a defence solicitor chooses an advocate to instruct for the trial of a white man accused of racially aggravated assault, would it be ethically permissible to select a black or Asian advocate in the hope that this will reduce the probability of conviction? Would identity conscious lawyer selection violate a commitment to equal justice, or represent a different means to achieving equality? Ethical questions about ‘identity conscious’ lawyering can also be linked to other aspects of the ‘non-professional identity’ of lawyers, such as gender and sexuality.

Last Modified: 9 July 2010