Resistance to teaching legal ethics

This section of his guide to teaching legal ethics Alwyn Jones (De Montfort University) considers various forms of resistance to teaching ethics, in particular within the context of undergraduate legal education.

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Objections may be raised in university committees requiring answers before undergraduate courses on legal ethics will be authorised. Here we seek to identify the core of genuine concerns and to suggest how law teachers might incorporate that core into the planning of ethics teaching and learning processes.

(Different tensions may arise at the vocational level, where some treatment of professional responsibility issues is required. For example, if an academic seeks to introduce a philosophical rather than rules-based approach students may express some discomfort, as the course may be perceived as not helping them to achieve the immediate goal of dealing with ethical issues relating to the relevant code of professional conduct.)

Four quite different concerns can be raised about the introduction of legal ethics into the curriculum:

• education or training: the academic/vocational divide – ethics teaching can be perceived as a distraction from the legal scholar’s proper role of liberal education into a training function, which should be left for vocational study at postgraduate level
• academic independence and political pressure – it can be perceived as giving in to outside pressures from the legal profession, the media or politicians to ‘make lawyers good’, and thus involve a loss of autonomy
• ‘legal ethics teaching won’t make lawyers good’ – law teachers do not have the capacity to effectively influence the future behaviour of tomorrow’s lawyers, since their behaviour will be determined by the culture and expectations of the firms that employ them
• ‘ethics teaching involves indoctrination of students’ – alternatively, it could work too well and indoctrinate students with the tutor’s own particular values, as students seek to imitate and impress their teachers

A positive case for teaching legal ethics to undergraduates has been made by Chapman (2002), who argued that students’ capacities for moral reasoning are inhibited by traditional legal education. He drew on the work of Rathjen, who found after empirical work on the values of students that “the law school experience appears to socialise law students towards an entrepreneurial value position that views the law as primarily a mechanism for private conflict resolution and views the lawyer’s task as limited to facilitating the singular client’s narrow interest in the specific case at hand”. Chapman argues that undergraduate legal education is well suited to remedying this socialising effect through the teaching of legal ethics, because students are used to adopting a questioning, critical attitude in law school and because of the lack of professional pressure.

In planning any learning process that aims to remedy this kind of socialisation, law teachers may wish to be mindful of Chapman’s point that “the capacity to reason morally is no guarantee of moral behaviour” (2002: 73). Law teachers may also want to question whether law school is truly free of professional pressure. There may be merit in exploring with students the socialising effect of their previous and current stages of education. If students develop a greater awareness of how they have been socialised, they may take that awareness with them into practice and may enjoy a great independence of thought and greater autonomy that comes from acting with fuller awareness.

Chapman notes that an ‘ethical sense’ will be necessary for lawyers because of their power, their role in the justice system, their specialised knowledge (making meaningful public scrutiny more difficult) and for lawyers’ own job satisfaction. This raises questions of what it might mean to have an ethical sense (or sensitivity to ethical issues), whether (and how) it could be taught, and if (and in what way) such sensitivity might be assessed.

Education or training – the academic/vocational divide

One concern is that teaching legal ethics involves an unacceptable shift from the legal scholar’s proper role of ‘education’ into a ‘training’ role. Traditionally there has been an emphasis on the division between ‘academic’ and ‘vocational’ study in legal education. Lord Justice Potter called for a rethink of this division in January 2002 (Potter 2002), arguing that there is considerable overlap between the ‘ethics of law’ and the ‘ethics of lawyering’ and calling for legal education that acquaints students with both. It can be argued that traditional legal education invariably contains elements of ‘training’ in certain skills, raising the question of whether the skill of analysing a particular appellate decision is more truly academic than the skill of analysing ethical principles or the development of moral character.

Ethics teaching can be justified even within law schools which firmly adhere to a split between academic and vocational modes of study – it can promote the key goals of a law degree, such as “the ability to read critically to gain information about the changing economic, political and social climate in which the English legal system operates” (Bone 1999: 9). According to the QAA subject benchmark statement for law a proficient law student should be able to “explain accurately the major legal institutions and procedures of English law” – this arguably could include ‘macro legal ethics’ just as well as the arrangements for the delivery of legal services.

Conventional modes of academic study can be brought to bear on the conduct of lawyers, and students can employ their traditional approaches to legal reasoning to the rules which purport to govern the conduct of lawyers. For Malterno ethics is a substantive law course that includes “malpractice liability, litigation sanctions, regulatory agency control, the evidentiary privilege, civil and criminal liability, among others”. He describes his professional responsibility course thus:

“The course…is about the law and ethics that govern relationships that lawyers have with clients, other lawyers, the profession and the justice system. It is the only substantive law course in the typical law school curriculum that is about what lawyers do.”

— Malterno 2000: preface

Such a course would appear to have quite different goals from those which aim to ‘make lawyers good’, but can be justified on the grounds of interest in the subject matter and as a way to value ethics within the law curriculum.

Academic independence and political pressure

A separate but related concern concerns academic independence, that teaching legal ethics would involve pandering to those in the legal profession, politics and the media who would impose on legal academics the job of ‘making lawyers good’ and open the door to unjustified interference in legal education by lawyers, politicians and journalists (Keyes & Johnstone 2004; Arthurs 1998: 106). This might be a valid argument against a compulsory requirement that all undergraduate law schools teach ethics, but it does not prohibit the voluntary introduction of ethics into the undergraduate curriculum where this can be justified as contributing to the goals of undergraduate legal education.

While individuals or bodies within government, regulatory bodies, associations of lawyers and the media might call for law schools to adopt ethics teaching, it does not follow that an academic cannot adopt ethics teaching through free choice and the exercise of their independent professional judgment. If the basis of this objection is the preservation of academic autonomy, it would be strange if there were ‘no-go’ subject areas for legal academics.

‘Legal ethics teaching won’t make lawyers good’

It can be argued that law schools have neither the moral responsibility nor the power to ‘make lawyers good’, since the actual behaviour of lawyers in practice is shaped primarily by obedience to the instructions and social norms of law firms rather than to abstract ideals discussed in a classroom. Arthurs has argued that “there is in fact no demonstrated connection between instruction in legal ethics and ethical behaviour” (Arthurs 1998).

Admittedly, published research from a large Australian study has made an interim finding that “the respondents essentially expressed their pre-existing values, derived out of their entire set of ethical values, and did not consistently apply to the scenarios specific values sourced from any legal training or practice” (Evans & Palermo 2005: 264). Earlier empirical research cited by Chapman (2002: 75), Corbin (2005: 269) and Nicolson (2005: 609) tends to support the interim findings of Evans & Palermo and to support the position that, as Nicolson puts it, “knowing what is right is only weakly linked to doing what is right”.

While the work cited by Corbin does emphasise that the culture and values of the workplace are “very influential” on the conduct of lawyers in a firm, there was also evidence of resistance to conformity. This raises the question of whether learning experiences in legal ethics should encourage students to develop their capacity to resist conformity in professional practice. To do so law teachers would, of course, need to determine what is needed to build in character, skills or habits of independent reflection and action sufficiently durable to endure the climate of legal practice. In evolutionary psychology Brayne found evidence that the perception that decision making is a rational process may be an illusion:

“Consciousness…provides a tool for rationalising before or after the event the course of action dictated by the emotional response. This uses the reasoning capacity of the brain not to make but merely to provide a social defence for the choice made by the emotions. The apparent rationality of this behaviour is promoted in order to maintain self-esteem.”

— Brayne 2002: 29

The objection that ‘ethics teaching will not make lawyers good’ may therefore prompt law teachers to employ more creative and wide ranging teaching and learning approaches, promoting students’ awareness of their emotional and unconscious processes. One vehicle for doing this may be reflection on the processes of decision making and ongoing relationships in clinical advice and teaching. When they found a difference between the stated beliefs of students and their actions Webb & Maughan discussed the concept of ‘discrepant reasoning’ with their students. As they observed, such dissonance provides clinical teachers with opportunities to engage students in critical reflection.

A further objection might be that legal ethics teaching is not feasible because there is not a sufficient body of legal rules forming the content of the subject:

“Without authoritative ‘legislation’, without a body of case law, without descriptive materials, without an integrative, reflective or critical literature of legal ethics, we lack the raw material to give students an intellectual experience comparable to what they receive in even the most mundane substantive course.”

— Arthurs 1998: 111

A large and increasing literature on legal ethics has become available (some of the core material is cited by Nicolson 2005: 603), however an obvious response would be to question whether legal ethics is or should be taught as a branch of law, and therefore whether such a body of literature is required. If subjects such as criminology and legal philosophy are sufficiently legal and academic to be accepted without question as law school courses, and if the ethics of health care (often a component of courses on medical law or health care law) is sufficiently academic for law students, it would seem difficult to dismiss legal ethics for the lack of a sufficiently large body of case law. Specific aspects of legal ethics, for example the issue of conflicts of interest, have in fact been the subject of a body of case law, with accompanying secondary literature (for example McVea 2000) and at least one doctoral thesis (Griffiths-Baker 2002).

‘Ethics teaching involves indoctrination of students’

“A liberal education is one which does not advocate any particular set of cultural values.” rv.
rn. Bradney 1999

A further objection to the teaching of legal ethics is based on the presumption that law teachers have no special qualifications for determining the objectively correct moral answer to any question, and hence should not seek to indoctrinate students in particular moral viewpoints in which the ‘right answer’ corresponds to the law teacher’s own stance. Put more bluntly, law teachers have no business instructing law students on right and wrong behaviour.

One possible response is that such a position would exclude law teachers from engaging in any legal education, since, throughout the treatment of substantive law, they engage with issues on which their personal political views and moral values have a bearing.

This concern may in fact reflect a moral relativist position. A moral relativist could argue that ethics is a merely a matter of opinion – a law teacher’s opinion on the morality of lawyering has no more value than the opinions of law students. Rhode & Luban (2001: introduction xvii) answered this objection in two ways. First, they show that no one, even a moral relativist, is willing to accept the full implications of moral relativism – if someone steals our property, we condemn this behaviour. Secondly, even accepting that there may be no demonstrable right answers to ethical questions, they point out that some answers are more coherent, consistent and inclusive of relevant concerns than others. Law students studying ethics are not being taught ‘right and wrong’ – they are being taught how to use reason to evaluate conduct in the light of ethical rules and principles, much as they have traditionally been taught to evaluate conduct in the light of legal rules and principles.

Last Modified: 30 June 2010