Putting ethics into practice

Sara Chandler and Pamela Rowbotham, College of Law

This paper from Vocational Teachers Forum V set out to discuss the teaching of ethics in the clinical environment, and in particular in the Legal Advice Centre at the College of Law, London, evaluating a pilot programme of ethics teaching carried out in November/December 2005. A hypothetical scenario and a list of short scenarios are included with the paper. Please seek permission to quote from the paper from the authors (e-mail: Sara.Chandler@lawcol.co.uk or Pamela.Robotham@lawcol.co.uk).

Are we bothered? How can we help students to identify, understand, shape, apply and retain their ethical standards post qualification? Can we teach ethics in clinic? What are effective ways of teaching ethics? We set out in this paper to examine these questions and to report on our conclusions following the pilot programme of ethics teaching carried out in the Legal Advice Centre at the College of Law, London, in November/December 2005.

The College of Law’s clinical programme started in 1999, when 20 students persuaded a lecturer to supervise free legal advice and representation for applicants at the Rent Assessment Committee and the Leasehold Valuation Tribunal. Thanks to Professor Richard Grimes (Director of Pro Bono and Clinical Education at the College of Law from 1999 to December 2005 and now an independent education consultant) the programme has developed to the extent that we now work with over 2,200 student volunteers in five centres (Birmingham, Chester, Guildford, London and York).

This paper is based on the pilot programme of ethics workshops in London, where this year over 1,000 students have volunteered. Our Legal Advice Centre is located in Store Street, where we have approximately 540 student volunteers. Of those, around 140 students on the Bar Vocational Course (BVC) volunteer in our Tribunal Representation Service, 250 students on the Legal Practice Course (LPC) volunteer in our advice programme, and 150 students on the Postgraduate Diploma in Law (GDL) volunteer in our Streetlaw Plus programme. Over 400 students volunteer in a variety of not for profit organisations, ranging from the Free Representation Unit to placements in law centres all over Greater London. The emphasis is on social welfare law, and our specialism is housing.

The Legal Advice Centre is a solicitor’s practice holding the Legal Services Commission’s Specialist Quality Mark in Housing. We have one part time barrister, one part time and four full time solicitors who are not lecturers, and one part time solicitor who is a BVC lecturer.

Concerns over the way that students felt unable to cope with conflicting pressures while studying, and the erosion of their ethical values once in practice, put a pilot programme of ethics teaching on the agenda for the Legal Advice Centre. We wanted to examine ways of building student confidence, so that they could survive with their ethical values intact the challenge of pragmatic practice, or the ‘get real’ or ‘grow up’ attitudes they may face once they enter training contracts or pupillages.

Wider context: the Training Framework Review

Over the last four years the Training Committee of the Law Society of England and Wales has reviewed legal education and the current needs of the profession. At the same time there has been a review of the regulatory framework of the legal profession, resulting in a new structure for the Law Society. From January 2006 training and education issues come under the Regulation Board, a structure separated from the representative and law reform part of the Law Society.

The Law Society is committed to a period of learning in practice, during which candidates are required to work under the supervision of a solicitor while they develop and apply knowledge, understanding and skills in an environment in which they can reflect actively on their development. Some of the proposed learning outcomes are directly relevant for the ethics programme we are undertaking in the Legal Advice Centre (Law Society, 2005):

• demonstrate appropriate behaviour and integrity in a range of situations
• demonstrate the capacity to deal sensitively and effectively with clients, colleagues and others from a range of social, economic and ethnic backgrounds, identifying positively and appropriately to issues of culture and disability that might effect communication techniques and influence a client’s objectives
• apply techniques to communicate effectively with clients, colleagues and members of other professions
• recognise and resolve ethical dilemmas

The profession emphasised skills and behaviour as a concern during the review period. There is a perceived need for trainee solicitors to have more practical experience in order to ‘hit the ground running’. Expectations from practitioners that the Legal Practice Course would deliver this training has led us to conclude that we could do more while students work in the Legal Advice Centre team.

Wider context: the International Journal of Clinical Legal Education Conference, Melbourne, 2005

Among the influences on our thinking is the contribution of the 3rd International Journal of Clinical Legal Education Conference. Our thanks go to the many clinicians who contributed with papers and discussion to the conference. Some of the contributions coincide with much of the discussions we had in planning our own ethics workshop programme.

Philip Plowden contributed a wide ranging discussion of the issues involved in the teaching of ethics (Plowden, 2005). His conclusion, that with the knowledge owned by lawyers comes immense power in people’s lives and with that great responsibility, is at the heart of what guides our teaching of ethics in the Legal Advice Centre. Plowden also states in his draft conference paper that law schools teach professional conduct rules but do not address moral issues. We set out in our pilot to find ways of teaching students to develop behaviour in difficult ethical situations. We aimed to give them a personal toolkit to make their own informed choices. Plowden advocates allowing students to express their feelings, and that effective teaching comes from keeping it personal and tailoring teaching to the individual. We agree with him that above all we should allow students to express their feelings and articulate their own values, and we should not tell students what to think.

At the conference Nigel Duncan (Inns of Court School of Law) put forward two assumptions:

1. A critical introduction to ethics is needed before students become subject to the pressures of practice.
2. Practitioners must know the codes of practice and professional conduct rules, but also recognise that there are grey areas and conflicts that the codes cannot resolve.

We sought to develop this theme in our workshop.

Clinical experience provides the first opportunity that many students have of examining ethics in practice. Curran, Dickson & Noone (2005) made three assumptions in their paper:

1. The role and responsibilities of a legal practitioner include serving the community.
2. The clinical method of legal education, properly implemented, offers unrivalled opportunities for exploring and examining the ethical dimension of legal practice.
3. Law teachers, especially clinical law teachers, are inevitably role models for their students.

We agree with their assumptions, and want to build on their study with our own view that students can learn from additional role models outside the clinic environment before they commence their training contracts.

A participant from the Melbourne Police recounted the effectiveness of his methodology in encouraging police recruits and more experienced police personnel to develop their own list of ethical values and the appropriate behaviour to demonstrate these values. We are indebted to his ideas, and have sought to develop his methodology in our work.

An American participant at Melbourne shared a method of encouraging ethical thinking in students through the oral histories of role model practitioners. We felt this was a useful exercise we might wish to pilot.

Legal Advice Centre context

The Legal Advice Centre offers students experience in several schemes:

• advice only
• tribunal representation
• housing casework
• small claims cases
• deaf legal advice service
• external placements

In September 2005 the College of Law introduced a new route to qualification in the LPC – the Public Legal Services route (known as the ‘legal aid LPC’ or the ‘PLS’). The students attend additional workshops run by legal aid practitioners and representatives from the Legal Services Commission, and can choose to study appropriate electives, including Housing (Landlord & Tenant). This elective is particularly relevant for the Legal Advice Centre, as it complements the housing casework training scheme we run. As part of the work the students produce a portfolio of their work carried out in the College’s pro bono programme. As supervisors we remind PLS students of the portfolio and prompt them to keep suitably anonymised work for their reflective journals. Where an ethical issue has arisen the students have the opportunity to write about the discussions they have had and any conclusions they might reach.

The housing casework training scheme is designed to enable students who have a strong interest in becoming housing solicitors to gain practical experience up to and including county court chambers hearings. Students work on cases involving allocations and homelessness reviews, disrepair, possession proceedings, applications to suspend warrants and small claims (such as return of deposits). They also participate as ‘runners’ assisting the duty advocates in the county court duty possession schemes at three London county courts. Students work in teams of three, and may see a case through from first instructions to final hearing or may work on part of the case, depending on its duration.

The College also has a programme run by students called the Law and Justice Forum. This is a programme of speaker events in which ethical and justice issues are examined, allowing for a broader context to the discussion than can be raised in discussions based on practice alone.

Ethics in the Legal Advice Centre

Students commence their advice and casework in the Legal Advice Centre in September, just three weeks into the academic year. Each student who is selected for the advice service or the Tribunal Representation Service undergoes an induction into office procedures and file maintenance. During the course of the inductions the students receive information about what is expected of them once they join the student advisor team, including ethical obligations. Each student signs a contract with the centre about the responsibilities of a student advisor. Before they meet their client the student advisors have an introductory meeting with their supervisor. Each student is given a handbook and is asked to read it before they start. Students carry out some preparation for the client interview, including discussing with their supervisor Rule 15 client care issues and the importance of explaining clearly the service to their client.

What professional conduct issues and ethical dilemmas surface during the course of a case? Some of them are client care, confidentiality, conflict of interest, costs information, who is the client, duty to the court, discrimination, negative feelings towards the client, work/study balance, and raising unrealistic expectations in the client. As ethical issues arise they are discussed with the student advisors. However, this can be a variable experience, as not all students will encounter many ethical issues.

How much time is or should be devoted by supervisors to encouraging reflective discussion? Kerrigan (2005) writes: “Being at the interface of legal practice and legal education can give students the luxury of time and the freedom of academic enquiry to reflect deeply which many will not experience again.” We agree with his view that there is a freshness and vibrancy about the issues arising in the course of casework that the supervisor cannot control. In our experience this means that the supervisor and student advisors must work as a team to resolve the ethical issues in the case.

We have a perception that there is an ethical timeline in the life of lawyers at the start of their professional life that becomes set as they mature into their practice. The timeline starts during the undergraduate course when we perceive a general understanding and commitment to ethics. This is carried into the start of the vocational courses, but may become flexible as the students encounter conflicting pressures, particularly on their time, and may develop pragmatic approaches to handling these pressures. During the traineeship period we perceive a general commitment to ethical conduct, and then, as the pressures of practice kick in, that commitment becomes more flexible and starts to erode.

Noone & Dickson (2001) describe a seminar programme running alongside a live client programme, so that in classroom sessions “professional responsibility and law of ethics” can be studied. One of our starting points was that ethics teaching in the classroom and ethics discussion and workshops in the clinic may offer a complementary and integrated approach.

Preparation for the programme

As part of our preparation for the workshop we met with lecturers who are responsible for the lecture and workshop programmes and carried out a preliminary investigation on how ethics and professional conduct are taught at the College. We wanted to assess how useful a complement to the classroom we could be.

We considered when to put on the programme. We decided that the workshop should run in the second half of the first term in order to reach students early on, but after they had started classes on professional conduct rules. We decided to select students who had already started or completed a case in the Legal Advice Centre and invited all of them to opt in for the programme, favouring willing volunteers. We added to this an LPC graduate who volunteered during the summer vacation and who was due to start a training contract in January 2006.

The pilot programme

We decided to develop a programme going beyond the issues raised as professional conduct matters. Looking at the outcomes described in the Training Framework Review we recognised the need to build a wider understanding of the sensitivity needed in a solicitor and the difficulty in devising training that would enable the student to deal effectively with people from a range of different backgrounds. We looked at our own experiences of racism awareness training in the 1980s and techniques used in assertiveness and equality and diversity training and decided that a fairly inclusive mix of experiential and interactive methods would suit the needs of the pilot. Our experience of soft skills training in other contexts (Chandler & Robotham, 2004; Chandler, Deveraux & Robotham, 2005) suggested techniques we might usefully deploy. In this way we set out to see what worked well and what worked less well, or not at all.

Content

The pilot programme consisted of three parts:

• Saturday workshop
• interviews with practitioners
• report back from the interviews and evaluation meeting

The draft programme for the Saturday workshop contained an introductory session, five workshop exercises and a roundup session. It was designed for plenary group, breakout small groups and working in pairs.

The programme was adjusted to suit the final group who actually participated in the Saturday workshop, and we conducted four exercises instead of five because of the time factor.

We used the introductory session as an ice breaker in order to get the students talking from the outset. All participants, including workshop facilitators, gave a short description of what they had studied before and to what extent this had included any ethics teaching. We had a mixture of LLB and GDL graduates. Some had studied jurisprudence, although this had been some time ago and they had not related it to the teaching on the LPC. In the course of this discussion the students began to talk about how ethics is taught in the classroom situation. On the LPC it is a pervasive subject being raised on each course by the lecturers, as well as being taught formally in the teaching of professional conduct rules. Students were also keen to talk about some ethical dilemmas they had already faced in a variety of situations, including work experience. We were keen to encourage discussion which reached beyond professional conduct and ethical dilemmas and to examine ethical practice, building on the students’ experience to put attitudes and behaviour under scrutiny.

A sample of students’ comments included:

• “Conduct rules are fundamentally different to ethics”
• “I was out of my depth and didn’t know how to respond”
• “Conduct rules are taught in the context of protecting the solicitor”
• “I wouldn’t have the confidence to tackle a person in power”
• “Can you make money and be ethical?…yes”
• “It’s all about conflicting ethics”

Exercise 1: identifying the values

We set out in the first exercise to develop a list of the ethical values expected of a solicitor from the students’ perspective. The students provided a list as follows:

• honesty
• integrity – wholeness
• respect for client’s values and colleagues
• reliability
• loyalty to your organisation, the court, client, society and to your own values
• efficiency, professionalism, competence
• non-judgemental
• value for money
• independence
• non-discriminatory, supportive
• creative
• empathetic
• responsibility
• commitment

We used a ‘one word’ brainstorm, and many of the suggested words gave rise to immediate discussion. For example, when discussing discrimination we looked at gender, race, age, ethnicity, disability and sexual orientation. Using one word rather than phrases heightened the sense of grey areas rather than absolute values. By the end of this session the students had a set of values to use for the next exercise. They also began to develop a sense of shared values and of being part of a community of ethical lawyers.

Other values which the students did not raise but which we reserved in our checklist in case we needed to inject them into the discussion included accountability, pragmatism and transparency.

Exercise 2: develop the ethical toolkit

We started this exercise with a brief presentation of what a toolkit could consist of, and what its use might be. We discussed ‘canteen culture’ and cultural attrition. The participants were unfamiliar with the term ‘toolkit’, and so we used a working definition – “a set of practical tools that assist in developing and sustaining ethical practice of the law”. The easiest way to get the discussion going was to look at the parts of the toolkit. We led the discussion by setting out component parts we had identified as follows – values, language, behaviour, confidence and support. We asked the students to describe what they thought made up each component part.

• values – our starting point was the list that had been developed in the previous exercise, which we kept in front of us throughout this session
• language – we wanted to adapt Plowden’s ideas on helping students to develop appropriate language for analysing ethical issues in the work they do. He advocates a space for some language teaching, and sees real merit in grounding this teaching in the reality of legal practice by using past and present clinical cases as exemplars of the different kinds of ethical approaches. We wanted to expand on this idea by developing appropriate language and vocabulary with the students so that they would be able to express their ethical commitments standards when challenged. We also wanted them to have the vocabulary to translate their feelings into thought and reflective practice.
• behaviour – we discussed the list of values and attitudes identified in the first exercise and the appropriate behaviour for these values. For example, what behaviour would demonstrate honesty?
• confidence – we took as a starting point that in order to build confidence participants need a certain degree of self awareness. We asked students to consider situations in which they had themselves had to consider how to act. From the students’ anecdotes we were able to have a discussion of the common themes. Most common of all was the feeling of powerlessness students feel when confronted by unethical behaviour by a more powerful individual.
• support – the students identified a variety of support networks, including peer mentors, role models, colleagues, support groups, whistleblowing support

Exercise 3: recognise the issues

Our aim here was to help the students develop an awareness of how ethical issues arise in the course of a solicitor’s practice. We used a comical hypothetical scenario involving common ethical dilemmas. We asked participants to stop us every time they felt uncomfortable as the scenario unfolded. Incidents ranged from the client who asks to be seen only by a white lawyer to the nepotism involved when an incompetent family member is appointed by the senior partner just before the interviews are due to start in the firm’s current recruitment process. The participants stopped the story and discussed the dilemmas emerging and the situation the rest of the firm’s staff are placed in, looked at from the different perspectives of support staff to those of senior partner.

As the discussion ensued participants began to examine their own feelings and to recognise how difficult it is to act with confidence in such situations. Having begun to dissect the problem, we then set out to build a remedy.

Exercise 4: practise the toolkit

We used a prepared list of scenarios which we gave out to the students. The inspiration for this came from the list used by Evans and Palermo in their paper at the 3rd International Journal of Clinical Legal Education Conference and from examples from real cases taken from our own practice. During the discussion at least one of the student participants gave examples from Legal Advice Centre casework they had undertaken. Our discussion allowed for an elementary look at conflicting motivating factors, a systematic approach to which is taken by Evans & Palermo in their study. The group identified three strong motivating factors – loyalty to family, the firm and personal ambition, but did not feel that the client’s interests were a strong motivating factor. This gave sufficient tension for a discussion examining the reasons why this might be.

Issues raised in the first exercise were re-introduced and discussed in the light of the new toolkit. Recognition was given to a greater sense of capacity to deal with the dilemmas.

Students made the point in discussion that practising useful phrases, even alone in front of a mirror, helps to develop confidence. Some examples of polite ways to challenge unacceptable views included:

• “Did you really mean to say that?”
• “I’ve heard other people say that, where did you hear it?”
• “Why do you say that?”
  Students then discussed recent cases of high profile solicitor disciplinary matters where ethical issues were involved. The grey areas provided ample opportunity for review of their developing confidence.

Workshop evaluation

Students completed an evaluation form asking for feedback from each exercise.

• Exercise 1 – the first question asked whether the students had an idea of ethical values before the workshop. Almost all students had no idea. One was “not sure” and commented that he/she had not thought much about it before. We also asked if the exercise had helped them to recognise appropriate ethical values, and we had 100% agreement on this. We also asked if after the exercise they could identify appropriate behaviour which demonstrated ethical values – all but one student agreed that they could. One student was “not sure” because there were not enough examples of appropriate behaviour.
• Exercise 2 – this exercise (developing a personal toolkit) was not so successful, with just under 50% being “not sure” that they understood what a toolkit was and how it might assist, with one student commenting that more explanation was needed. When asked if they found the discussion helpful in deciding how to build his/her own toolkit, more than 50% were “not sure”, with one student asking: “How do practitioners keep their toolkits? Ad hoc memory, note taking?” This interested us, as we could see how useful a reflective journal would be in developing a personal toolkit. When asked whether they felt more confident after the exercise, one student strongly agreed and commented: “It helps to be able to have contextual tools to use in a given situation”. The rest were split equally between those that agreed and those that were “not sure”. The latter were the same students who had given “not sure” in their previous answers. It is useful to bear in mind that there will always be a number of students who have not developed any ideas about ethical practice, and that as clinicians we must find ways of triggering their understanding through these exercises. It is clear that we need to develop the concept of the toolkit in order to assist the students in understanding this exercise.
• Exercise 3 – this exercise on recognising the issues produced more strong agreement and positive comments, for example: “The talk of real situations was of real benefit”, and: “Made me realise how easily issues can arise by presenting familiar situations”. The one student who answered “not sure” commented: “Strong signals about where the issues lie and no ‘red herrings’ – left me feeling uneasy as it was obvious where to stop but less so how to define the issues”. Asked whether they enjoyed the exercise, most students agreed with reasons such as: “Because very interactive”; “Again, real situations help clarify issues”, although one student felt it “could have been shorter”, and we had one “not sure”. When asked whether the exercise made the students feel more confident about recognising the issues, there was one “not sure”, with the rest split equally between “strongly agree” and “agree”, with one comment: “Because I have had the chance to clarify issues I felt unsure about”.
• Exercise 4 – this exercise (various short scenarios) firmed up views for all the participants. When asked if the scenarios helped them to get a picture of ethical dilemmas, two thirds agreed and one third strongly agreed. Asked whether after the exercise they felt more confident in their capacity to deal with ethical dilemmas we had 100% agreement, with comments such as: “It’s not really black or white as per professional conduct – can be more creative”; “Because I have a better idea of how things work in practice and what other people think”; “Found discussing real life scenarios most useful, especially where detailed discussion of factors and possible strategies (learn by example)”. This last comment reinforced our view that the shared discussion was valuable.

On general questions we had positive feedback. It was interesting to note that some participants stated they had always been interested in ethics, and all agreed that after the workshop they were more interested in ethics, with one “not sure”. On the crucial question about timing we discovered all but one participant would prefer workday evenings to Saturdays, and nobody opted for Sundays!

Practitioner interviews

This was difficult to organise, as practitioners were all very willing, but also very busy. We finally organised interviews during the day to suit practitioners (mostly around lunchtime). We are indebted to the practitioners who gave up their time to participate. One bonus was a student who asked if he could arrange his own interview at the firm where he is to do his training contract. The students were instructed to interview the practitioner for about one hour about ethical issues arising in the course of their work, and how each had been dealt with. They were to take notes and be prepared to discuss their interview at the report back meeting.

Report back from interviews and evaluation meeting

The practitioners were a mix of senior partners, partners and assistant solicitors, working in private practice and the voluntary sector. There was a variety of areas of law, including mental health, human rights, public law, family and adoption. None of the students felt that they were imposing on the practitioners, and all felt that they had had a useful interview.

The students had a discussion that respected the anonymity of their informants and allowed them to gain some insights into the ethical dilemmas of practice. All practitioners emphasised the need to go and talk to someone else as soon as ethical dilemmas arose. One practitioner had various peer mentors with whom she could discuss issues. Another practitioner stated how important it is to set boundaries with the client in a polite way. Issues arising included benefit cheating, pub culture in the firm, duty to the court and to the client, and where to go for support.

One practitioner said that there were times when she had to choose where and when to make a stand in order to be effective. She commented that a necessary device for removing temptation if it arises is to talk to someone else immediately to remove the burden.

Out of this discussion students agreed that rehearsing vocabulary is important, as is role playing scenarios in your mind in order to be prepared for whatever you might face.

Conclusion

This is a work in progress, and our paper is a first stage in evaluating methods that may assist and complement the teaching of ethics in clinic.

Whilst our study was too small to be of statistical significance, its results are, we suggest, valuable to the extent that they show that teaching ethics could be an integral part of the clinic experience. Our study also suggests that taking the time to allow junior lawyers the space and time to think about ethical issues at the beginning of their legal careers may in turn foster and bolster their ethics standards throughout their legal careers. One way which we believe this can be assessed is to track a cohort of students who have undertaken ethical training in the clinic environment against a cohort of students who have not, a study which is being carried out by Evans and Palermo at La Trobe University in Australia.

If a clinician wanted to run a similar programme, there are a number of issues to consider – group size, timing, agenda, type and content of exercises, and facilitation of sessions. Above all, time needs to be set aside for the planning, delivery and evaluation of such a programme. Students wanted an interactive, discursive programme, and more practice. How to time this in a busy teaching programme is yet to be settled.

We believe that to support the development of student ethical values we need to keep challenging students by asking questions in the context of their casework, and continue to develop linked interactive exercises for the workshop programme. We will adapt and revise the programme in line with feedback from the students and run more workshops this year.

We as practitioners recognised the powerful role we play in the development of our students’ training. We need to ensure that the training we give them is of value to them as junior lawyers, and to the profession, and ultimately to the public. We were heartened to receive such positive feedback and commitment from the student participants in the workshop. We see ourselves as part of a larger group of clinicians who have shared their experience of ethics teaching in the clinic environment. We hope that we have in a small way helped with this contribution.

References

• Chandler S & Robotham P (2004) Training for needs analysis and provider mapping Kampala, Uganda: Uganda Legal Aid Service Providers
• Chandler S, Deveraux A & Robotham P (2005) Training for legal aid lawyers in the eastern Caribbean St Johns, Antigua
• Curran L, Dickson J & Noone M (2005) Pushing the boundaries or preserving the status quo? Designing clinical programs to teach law students a deep understanding of ethical practice (draft paper for the 3rd International Journal of Clinical Legal Education Conference, Melbourne)
• Grimes R & Smith C (2005) Reviewing legal education: what do we want from our future lawyers and how do we get it? (draft paper for the 3rd International Journal of Clinical Legal Education Conference, Melbourne)
• Kerrigan K (2005) How do you feel about this client? A commentary on the clinical model as a vehicle for teaching ethics to law students (draft paper for the 3rd International Journal of Clinical Legal Education Conference, Melbourne)
• Law Society (2005) Qualifying as a solicitor: a framework for the future London: Law Society
• Law Society (2004) Training Framework Review consultative paper London: Law Society
• Noone M & Dickson J (2001) ‘Teaching towards a new professionalism: challenging law students to become ethical lawyers’ Legal Ethics 4(2): 127-145
• Plowden P (2005) Only from real life, real learning (draft paper for the 3rd International Journal of Clinical Legal Education Conference, Melbourne)

Biographies of Sara Chandler and Pamela Robotham

Sara is the Senior Supervising Solicitor at the College of Law’s Legal Advice Centre in London. She previously worked in law centres and legal aid private practice, and specialises in housing (Landlord and Tenant) law.

Previously a legal aid private practitioner in south east London, Pamela is a Supervising Solicitor for the Housing Casework Scheme run by the College of Law’s Legal Advice Centre in London.

Last Modified: 4 June 2010