Promoting ethical lawyering

In this article from the Spring 2009 issue of Directions Martin Partington reflects on the thinking and recommendations in Preparatory ethics training for future solicitors, a recent, and some would say controversial, report prepared for the Law Society of England and Wales.

Martin Partington, CBE, QC, is Emeritus Professor of Law at the University of Bristol and a former Law Commissioner.

The world currently faces a raft of issues which raise profound moral and ethical questions. Most pressing, perhaps, is the current financial crisis, which has provoked fierce debate about the moral and ethical bases on which the economy is run. Another example is the endemic problem of the impact of environmental degradation on the world. Thirdly there is the challenge of knowing how to deal with the implications of terrorist threats in ways that do not so outrage principles of human rights that measures to promote security become counter-productive. Many more examples could be given.

In these contexts the ethical principles adopted not just by lawyers but also by other key professional groups – for example accountants, bankers, scientists, journalists – affect the ways in which corporations, governments and individuals respond to these major social challenges.

In this environment the Law Society of England and Wales took the bold step of commissioning two academic lawyers, Kim Economides and Justine Rogers, to write a paper on ethical training for solicitors. In it they review the current state of ethical training for lawyers and, while noting the challenges involved, offer advice on ways in which the Society might further promote that training.

Their underlying assumption is that there is, currently, an ‘ethical deficit’ in modern legal education and practice. They argue that “failure to take remedial action may result in a further erosion of public confidence with clients turning to other professions at home or abroad who (rightly or wrongly) may be perceived to be more reputable and trustworthy”.

They consider the different stages of legal education – the academic stage, the vocational phase (including both the Legal Practice Course and the training stage) and the post-qualification stage, and assess the extent to which further emphasis on ethical training might be injected at each point.

In an ideal world the authors would like to see a major educational initiative being taken by the university law schools. They say that this happened in the USA following the Watergate scandal, and they note that in the UK there is a small number of law professors who have taken legal ethics seriously. But, notwithstanding their work, legal ethics is still not part of the mainstream of academic legal education.

They recommend that the Joint Announcement between law teachers and the legal profession be renegotiated to embrace “legal values and the moral context of law”. Failing that, they suggest that the Law Society/Solicitors Regulatory Authority should unilaterally require those starting the vocational stage of their training to demonstrate awareness of the ethical issues lawyers are likely to confront.

With the Legal Practice Course in a state of some flux, they suggest that consideration should be given to embedding further consideration of legal ethical issues, on lines analogous to those pursued by the medical profession. They suggest that newly qualified lawyers might be required to take a version of the Hippocratic Oath at the start of their professional careers.

Within firms the authors suggest that in-house ethics officers should be responsible for developing and maintaining the legal ethical standards of their colleagues. They also suggest that legal ethics should become a mandatory component of CPD activity.

For many these ideas will all seem a step too far – it will be argued that adherence to ethical standards is inherent in being a lawyer. Indeed, the authors themselves recognise that they are unlikely to be implemented without firm leadership amongst both the academic and practising branches of the legal profession.

However, there have been too many reported failures in the ethical standards of solicitors in recent years for these ideas to be rejected out of hand. They need to be further debated and refined. Among the questions the report provokes that merit further discussion are:

1. What is meant by ‘legal ethics’? The report gives relatively little attention to this issue. The nearest thing to a definition appears at p15, where, citing O’Dair (2001), they say that the study of legal ethics should involve the critical examination of “the arrangements made by society for the delivery of legal services and in particular of the legal profession, its structures, roles and responsibilities (sometimes termed as macro legal ethics); 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); and 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 to enable them to view legal practice as morally defensible and therefore personally satisfying.” Is that a definition that would be broadly supported?
2. How helpful are the arguments drawn from medicine? In the practice of medicine ethical questions seem broadly obvious – what should be the response of doctors and other medical practitioners to issues relating to the life, death and treatment of their fellow human beings, particularly at a time of major scientific advances in the understanding of and means of treating disease. Are the dilemmas which face lawyers sufficiently analogous to those facing medical personnel?
3. What are other professions engaged in the delivery of other essential services doing about meeting the ethical dilemmas that face them? Are there statements of ethical principle for, for example, bankers, accountants, journalists? Can the ethical challenges of the modern world be met by lawyers acting on their own?

Economides and Rogers have raised fundamental questions, not just for lawyers, but more generally. And they have set major challenges for professional and academic leaders which should be taken forward urgently.

Reference

• O’Dair R (2001) Legal ethics: text and materials London: Butterworths

Last Modified: 4 June 2010