Legal Education Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Legal Education Review |
|
TEACHING LEGAL ETHICS
SUSAN BURNS*
There is a growing body of literature in the United States and Canada which examines the place of instruction in legal ethics in the broader context of legal education. To date, there has been little consideration of this subject in Australian writing on legal education. This paper reviews the more recent literature in the area, particularly in relation to the need for instruction in legal ethics, the forms of existing tuition and the alternative course structures and teaching methodologies.
WHAT IS LEGAL ETHICS?
Writers use the terms “legal ethics”,
“professional responsibility” and “legal profession”
more
or less synonymously. Teaching legal ethics is concerned with imparting to
students a critical understanding of the legal profession,
its structures, its
roles and responsibilities, the roles and responsibilities of lawyers in their
provision of professional services
and the individual student’s own values
and attitudes. It includes an examination of what the legal profession does and
ought
to do.1
Legal ethics involves teaching
students about the disciplinary rules regulating the legal profession. These are
frequently statute
based and usually enforced by punitive sanctions. Legal
ethics is also concerned with an examination of the personal values or
moralities
of individual lawyers and issues such as the legitimacy of requiring
lawyers to perform roles that conflict with personal values.
In this paper the
term “legal ethics” is used in a broad sense to encompass
consideration of the disciplinary rules and
broader issues of morality and
philosophy.
TEACHING LEGAL ETHICS
Most of the writing in this area considers the
threshold question of whether it is appropriate that legal ethics be taught at
all.
The approach of writers to this question can be related in part to their
view of what legal ethics comprises.
Most writers raise as an objection to
the teaching of legal ethics the view that such courses amount to exercises in
or attempts at
moral indoctrination of the students. This, of course,
presupposes that the course content is limited to moral/philosophical aspects,
and that the students are malleable enough to be indoctrinated. Critics assert
that moral or ethical conduct is a personal matter
gained through early
socialisation and that, as a consequence, education in legal ethics at a time
when students are preparing for
entry into the profession comes too late to make
any difference to their character. As one commentator expressed the concern,
legal
ethics, “like politeness on subways ... or fidelity in
marriage” cannot be acquired through course assignments in professional
schools.2
Other critics argue that it is
inappropriate for faculty members or members of the profession to impose their
morals on others. They
argue that instruction in legal ethics can be a
demoralising experience for students if teachers impose their values and
penalise
students for holding views, beliefs and opinions which do not coincide
with those of their instructors. Additionally, critics assert
that if educators
attempt to impose their morals and ethical beliefs on others, a course in legal
ethics can “lapse into a
form of value clarification that erodes
values,”3 that is, the beliefs and values of the
students are supplanted by those of the instructor.
Proponents of courses in
legal ethics state that the arguments against legal ethics apply equally to
teaching many other courses.
Although there is always the potential for a course
to be weighted too heavily in favour of a teacher’s own views:
We will not eliminate the difficulty by eliminating ethics. The answer rather is to educate the educators. A well structured component on ethics can help counter the interplay of naive positivism and radical scepticism that often dominates professional culture.4
Finally, critics assert that a course in legal
ethics can inadvertently foster cynicism in students. They argue that if
students are
presented consistently with instances of regulatory failures and
ethical dilemmas with no apparent solution, they may develop a scepticism
about
the profession and the role that instruction in legal ethics can play.
The
consensus amongst recent academic writings is that instruction in legal ethics
is desirable because:
[although it is] ... unlikely to lure wayward souls to the path of righteousness ... it can increase recognition of ethical issues, enhance skills in ethical analysis and build awareness of the structural conditions and regulatory failures that contribute to problems in professional life.5
Instruction in
legal ethics draws students’ attention to the existence of values,
introduces students to the ethical dimensions
of the roles they will have as
professionals and stimulates the capacity for and willingness to engage in
reflective judgment.6 As one commentator has stated,
the acknowledgement that legal education can do “only a little” to
affect professional
behaviour “does not justify doing
nothing.”7
Since lawyers are potentially in a
very difficult situation because of the competing duties they may face as a
result of their position
in society, it has been suggested that a grounding in
legal ethics may help practitioners to avoid any conflicts or other ethical
dilemmas as they arise. If an individual has an insight into the nature of the
forces with which he or she is struggling and has
had practice in working out
solutions for such conflicts as a part of his or her legal education then that
person is better prepared
to overcome a conflict when it
arises.8
SHORTCOMINGS OF CURRENT EDUCATION IN LEGAL ETHICS
A recent comprehensive study of the teaching of legal ethics in Canada identified the following shortcomings in existing instructions in legal ethics:
(a) a lack of commitment to professional responsibility instruction;
(b) a lack of co-ordination regarding professional responsibility instruction among the various providers of legal education;
(c) inappropriate or incomplete instructional objectives;
(d) the use of ineffective teaching methodologies;
(e) little or no curriculum planning with respect to professional responsibility instruction;
(f) lack of resources; and
(g) lack of educational and institutional infrastructure.9
OBJECTIVES IN TEACHING LEGAL ETHICS
A leading proponent of teaching legal ethics has identified the following objectives as the key objectives in training students in legal ethics:
– evaluate the appropriateness of professional roles and their implications for the student;
– develop frameworks for evaluating professional obligations and selecting appropriate courses of action when these obligations come into conflict; and
DESIGNING A COURSE IN LEGAL ETHICS
If we assume that it is desirable to teach law
students legal ethics, the most appropriate and effective course structure must
be
determined. Clearly any course should be designed to overcome perceived
shortcomings in existing courses, and to fulfil the identified
objectives of
instruction.
Course structure and teaching methodologies must be considered.
Should instruction take place in a “once-only” course
or should
instruction occur throughout a student’s legal education? Should
instruction occur in a clinical setting or in a
classroom? Course structures
which have been employed include pervasive instruction where legal ethics issues
are raised during substantive
law courses, clinical courses, simulated practice
and “stand-alone” courses. Methodologies which have been used to
date
include case studies (relating ethical problems to disciplinary hearings
which have taken place before courts and tribunals), problem
methods, Socratic
instruction, discussion, videos and film presentations, co-curricular activities
and lecture techniques. There
are important timing issues which must be
resolved, such as whether instruction should occur early in a student’s
law school
experience, at a later stage of law school, after law school and
before admission or post admission, or at several stages throughout
a
student’s education.
COURSE STRUCTURE
The pervasive method of instruction in legal ethics consists of
systematically teaching students about legal ethics issues as they
arise in
other substantive law subjects. This approach is intended to demonstrate to
students that issues in legal ethics pervade
all areas of the law and do not
arise merely in discrete courses on legal ethics.
If a pervasive approach to
teaching legal ethics is to be adopted, it is important that it be adopted by
the entire law school faculty
and be:
“considered a natural and integral component of instruction in procedural and substantive law.”11
Commentators suggest that it is important not to
emphasise legal ethics issues constantly, as students are more likely to respond
positively to training in legal ethics if ethics issues are raised only
sporadically. The success of a pervasive approach to teaching
legal ethics
depends upon commitment of the faculty and willingness of the students to
examine ethical issues and questions as they
arise. By considering issues of
legal ethics as they arise, it reinforces the notion that the ongoing
consideration of ethical issues
in practice is a crucial constituent of
practice. Failure to address issues of legal ethics consistently throughout a
law student’s
education marginalises their significance. If students see
issues of legal ethics as a peripheral part of their legal education,
they may
well regard issues of legal ethics which arise during the tasks they perform in
practice as peripheral to that practice.
The pervasive method of teaching
legal ethics is not without its critics. Commentators have noted the following
issues as being problems
associated with teaching legal ethics pervasively:
One commentator who
strongly favours instruction in legal ethics by the pervasive method believes
that the problems are surmountable
if some co-ordination can be achieved in the
method and content of instruction. Co-ordination can assist in ensuring that
repetition
or overlap is kept to a minimum and can also minimise omissions.
Finally, co-ordination of instruction can establish a set of core
questions
which can be addressed or examined from differing view points in a variety of
courses.14
It is interesting to note that the
American Bar Association House of Delegates has recently recommended that law
schools, “weave
ethical and professional issues into courses in both
substantive and procedural fields.”15
Clinical Instruction
The clinical method of instruction in legal ethics
has as its core direct student exposure to clients. The method is client-centred
and depends upon the student taking responsibility for the representation of the
client. The outcome for the client depends on the
work undertaken by the student
on the client’s behalf.16
Clinical
instruction involves students engaging in: the multitude of emotional reactions
law practice situations generate. Such feelings
are rarely confronted during the
legal education process, with its heavy emphasis on rationality and the
development of analytical
skills.17
Students, in
effect, perform the role of the lawyer. They are compelled to face the
consequences of their actions, and in particular,
the consequences of their
failures and shortcomings.18
While some
commentators perceive the advantages in a student performing the lawyer’s
role, and being responsible for the consequences
of their actions, other
commentators feel that the clinical method of instruction has its shortcomings.
Although the clinical method
may be successful in communicating the
experience-based aspects of legal ethics, its usefulness in communicating the
necessary substantive
legal material (such as ethics principles, professional
rules of conduct and the like) is doubtful. Other criticisms include the
following:
In summary, the overriding concern about the clinical setting as a setting for instruction in legal ethics is that coverage may be superficial and ad hoc, depending as it does very largely on the cases that come before the clinics.
Simulated Practice
Critics of the clinical method of instruction assert that instruction by role play in a simulated practice setting will overcome all the objections to instruction in legal ethics through the clinical method. With clinical instruction methods there are:
real problems with instructor dominance, unpredictable substance (some issues will never arise), uncontrollable coverage, and relatively short-term exposure (resulting in many of the ramifications of ethics choices being passed to the next student instead of being experienced by the acting student).20
On the other
hand, although, “... long term simulations ... will not result in real
outcomes for any client”21 simulations
“have certainty of issue coverage, the likelihood that students will see
the results of their own choice, and students
exercising independent judgment
and developing long term relationships with the various participants.”
22
A major proponent of simulation/role play as a
method of legal ethics instruction advocates that the programme should fall
within
a comprehensive skills development (“CSD”) programme of one
to two years’ duration. During the CSD programme students
work with other
students, and with supervisors, dealing with the legal problems of simulated
clients (played by real people). They
have carriage of a matter from the stage
of initial instructions to the stage of resolution of the
“client’s” problem.23
The CSD
programme is purported to retain the best aspects of the articling system,
combined with the best aspects of an academic atmosphere.
Simulations have
all the advantages of clinical instruction methods, with none of the
disadvantages:
Simulations, if well constructed, afford opportunities similar to those provided by in-house clinic situations to “learn by doing” and “learn by imitating”, which, activists correctly argue, teach moral judgment. Once students are put into a setting conducive to learning by doing and learning by imitating, teachers must concern themselves with what students do and whom they imitate.24
In a simulation, teachers have a greater opportunity to oversee “what students do and whom they imitate”. Teachers devise the cases placed before students and oversee student conduct in the handling of their workload. Finally, instruction by simulation avoids the underlying moral question of using actual clients for the purposes of educating law students. If the same ends can be achieved using simulated clients, why should there be a need to use “real” clients?25
Single Course
Most existing law school education in legal ethics occurs in a single course, variously entitled “Introduction to Law”, “Legal Profession”, “Legal Ethics” or “Professional Responsibility”. Instruction is usually lecture or seminar based and may cover topics such as:
– duty to the court
– duty to uphold the law
– duty to other counsel
– duty not to break the law
– duty not to assist others to break the law
– conflicts of interest
– personal ethics vis-a-vis professional role
– duty to represent the client
– confidentiality
– duty to the Law Society
– relationship with clients
– duty to be competent
– discrimination
– general ethical duties.
The most commonly taught subject matter in
these single courses of instruction is doctrine, and especially the codes of
conduct or
professional rules governing behaviour.
It has been suggested
that teaching rules alone is not enough. The criticism revolves around the
notion that if students are taught
the rules alone, without the philosophical
and ethical issues which have given rise to those rules, students may form the
view that
legal ethics can be reduced to the making and following of
rules.26
Not all ethical issues and dilemmas can be
reduced to a set of rules. Students should be given as broad an instruction in
all aspects
of legal ethics as is possible, so that they are given a framework
in which to deal with ethical dilemmas as they arise. Students
should never be
placed in a position where it is the doctrine alone in which they receive
instruction. They should not be placed
in a position where, if the doctrine does
not exactly match the ethical dilemma they are facing, they do not know how to
deal with
the ethical issues before them.
The most frequent criticism of
single courses in legal ethics is that a single course carries with it the
adverse implication that
legal ethics is a relatively unimportant subject.
Unlike courses in substantive law subjects which are relatively self-contained,
issues of ethics pervade many if not all substantive law courses. To limit the
consideration of ethical issues to one course limits
the ability of students to
recognise ethical issues when they arise in diverse areas of practice, as they
are bound to do. The conclusion
of one commentator seems apt:
The present practice of giving a single course seems about as logical as keeping a medical student in laboratories during the four years of medical school and then turning him out upon an innocent population after a l-hour course in “medical practice”. He would assuredly be lost, and so would be his patients.27
METHODOLOGIES
Case studies have been described as a “poor primary resource” for instruction in legal ethics.28 Generally, case studies involve reviews of actual cases of misconduct which have been considered by disciplinary tribunals or courts. The method provides an opportunity for presentation of facts, and an illustration of the manner in which the problem has been resolved by the tribunal or court. Critics suggest that case studies do not provide an opportunity for discussion nor do they equip students with a technique for recognising and solving ethical dilemmas as they arise. However, case studies are considered useful as a secondary source to provide insight into the way disciplinary processes work by demonstrating the range of sanctions which may be imposed for a breach of prescribed standards of professional conduct.29
Problem Methods
Much of the existing education in legal ethics is conducted using the problem method. Students are presented with various hypothetical fact situations and are asked to explore the issues arising on the facts, using their knowledge of ethical and moral standards and the various applicable codes or rules which apply to the profession. The problem method has perceived advantages over the case study method in that it requires students to engage in deep consideration of the consequences of the facts before them. Unlike the case study method where students are aware of the ethical issues involved in a problem at the commencement of their consideration of the case, the problem method requires students to isolate the ethical issues which arise before they can go on to attempt to resolve the issues. In addition, using the problem method enables instructors to expose students to a wider range of issues, for example, ethical dilemmas which arise during negotiations.30 Some issues just do not arise in actual cases considered by disciplinary tribunals or courts.
Socratic Instruction
The Socratic method of instruction has as its focus
the development of the cognitive skills of students. It is reputed to be
effective
as a means of clarifying feelings, behaviour and attitudes, at least
for the student actively involved in discourse with the lecturer.
Faculty
members should, if they are determined to use the Socratic method of
instruction, know how to use the method successfully.
Students often feel
uncomfortable having to engage in discussions or debates with their instructors.
Students may feel particularly
reluctant to engage in discussion where their
ethics or morals may be called into question. Socratic instruction should not be
an
exercise in students having to guess what the lecturer is thinking, and then
being reprimanded or ridiculed when they guess
incorrectly31 Socratic instruction is, apparently, most
successful when it is conducted in relatively small groups, with few observers
present.32
Discussion Method
The discussion method of instruction in legal ethics
is intended to result in “sharpened insight and sensitivity” in
students.
Participation in small group discussions concerning ethical issues is
intended to provide an opportunity for students to engage personally
in the
resolution of ethical dilemmas which may, in turn, stimulate “more
reflective moral reasoning”.33
The discussion
method, unlike traditional methods of ethics instruction which have required
only passive learning, has the potential
to “affect a development of
cognitive skills requisite for principled
learning.”34 In addition, discussing issues of
legal ethics at law school may impart in students an appreciation of the
importance of discussing
issues of legal ethics as they arise in practice and
may encourage students to seek help from colleagues in resolving problems
confronting
them.35
Video and Film Presentations
Instruction in legal ethics by video and film
presentation has several favourable aspects. Visual media have been found to
arouse
interest and capture student attention, both vital prerequisites to
effective learning. The film medium may assist students, who
have had little or
no exposure to legal ethics issues, to grasp concepts more easily since ideas
are conveyed by image and spoken
word rather than by spoken or written word
alone.
Criticisms of the use of film and video materials in legal ethics
education include:
Co-Curricular Activities
Co-curricular activities are activities with an education component that are not a formal part of the curriculum. Participation would usually be voluntary and attendance at co-curricular events may reinforce issues of legal ethics raised on other occasions. Possible events include:
(a) outside speaker programmes involving members of the judiciary and the profession and from other academic areas such as philosophy;
(b) career oriented panels;
(c) book discussions;
(d) film series; and
(e) meetings of study groups to discuss specific topics.37
Lecture Method
The lecture method of instruction is concerned with
the transmission of information, and has been described as the, “transfer
of material from the teacher’s notes to the students notes without passing
through the minds of either.”38 The lecture
method has also been described as “non-involvement, non-experiential,
non-interest arousing and nonsense as a method
of teaching professional
responsibility.”39
The method is acknowledged
as being a useful method for the conveying of an understanding of philosophical
arguments as they specifically
relate to the ethical dilemmas of lawyers, and
for the conveying of “black letter” ethics law (for example, the
applicable
rules or codes of conduct).
However, the lecture method is not
useful as an educational tool in fostering understanding of a lawyer’s
personal responsibility
for his or her own actions, nor is it useful for
enhancing a lawyer’s analytical ability.40
TIMING
Depending on the preferred form of instruction, the
timing of instruction in legal ethics may not be an issue. If the preferred
method
of instruction is the pervasive technique, then instruction in legal
ethics will occur throughout law school studies.
If, however, a clinical or
simulated practice method of instruction is preferred, it must be determined
whether the instruction is
to occur during a student’s law school
education, or subsequently perhaps immediately before entry into the profession.
Simulated
client instruction could, if desired, occur throughout law school,
since the simulations could be tailored to fit in with the student’s
stage
of instruction in substantive law. The timing is less clear with clinical
education, since a student’s knowledge of substantive
law would have to be
well advanced before that student would be equipped to cope with the range of
cases that may be presented in
a clinical situation.
The greatest debate
about timing revolves around teaching of single courses in legal ethics. Some
existing courses which are intended
to explore legal ethics issues are
introductory law courses, taught in a student’s first year of law school.
First year students
may lack the basic knowledge to grasp the issues being
presented to them, and will not have the perspective necessary to place ethics
issues in their wider context. If legal ethics instruction occurs at a later
stage, students may be too cynical to give the course
the attention it deserves,
or may be preoccupied by other courses they perceive to be more important, or
preoccupied by the prospect
of finding employment. Instruction at a later stage
of legal education may, of course, mean that students lacked the necessary
background
knowledge to recognise and raise issues of legal ethics as they arose
in other earlier courses.41
VOLUNTARY OR COMPULSORY INSTRUCTION
Experience in Canada suggests that if instruction in legal ethics is voluntary, not many students elect to take such courses.42 On the assumption that teaching legal ethics:
shares a number of goals with the teaching of any other law field; teaching analytical thinking skills, constructing an analytical framework for the examination of problems that arise in the field, conveying a block of substantive law, and providing an academic atmosphere for critique of the current state of knowledge in the field43
there seems little reason why instruction in legal ethics should not be compulsory. As one leading advocate of compulsory teaching in legal ethics has stated:
Professional schools should require instruction for the same reason that they require courses in other areas; the subject is central to effective practice and not all students will elect it. Historical experience demonstrates that a laissez-faire approach is particularly inadequate when it comes to ethics. Many student wish to avoid anything that appears “touchy-feely.” A well-constructed ethics curricula, however, addresses issues of far more personal relevance than much of what is now required in professional schools. Many practising lawyers will never encounter a shifting (or springing) use; virtually all will confront issues of honesty, confidentiality, and loyalty. Only through mandatory curricular offerings can we reach students who are least likely to elect coverage and often most in need of exposure.44
PROPOSED OR EXISTING COURSE STRUCTURES
Coordinated Curriculum for Legal Education in Canada
A “coordinated curriculum” has been devised by Brent Cotter as a
result of his recent study of the teaching of legal ethics
in Canada. This
“coordinated curriculum” prescribes the preferred course structure
for the teaching of legal ethics during
law school, after law school but before
admission, and throughout the lawyer’s professional life. The approach: it
is suggested,
will ensure a continuum in law schools, bar admission programmes
and continuing education curricula in which there will be opportunities
at
increasing levels of sophistication to probe complex issues faced by lawyers in
the modern world.45
Cotter has devised a series of
aims for instruction in legal ethics. He has formulated a “building
block” approach to
achieving these aims, recognising that the education
should be a gradual process, with instruction tailored to achieving the
appropriate
standard of education at the appropriate stage in that
education.46
Legal ethics instruction at Law
School: Cotter recommends that there be both pervasive instruction and
“stand-alone” instruction
in legal ethics during law school. He
favours a course structure along the lines of the following.
In the first
term of first year, a course dedicated to an introduction to the legal
profession and to the roles of lawyers within
the legal profession, emphasising:
In other
first year courses there should be a coverage of issues related to the legal
profession and legal ethics. There should be
coordination of this instruction
with the block instruction.
There should be supporting materials available
which are appropriate to the subject matter of the course. Such materials should
emphasize
the general learning objectives of the course and the relationship
between the ethics issues and the course in which the issue arises.
First
year instruction should involve students in small group activities, should
encourage discussion with and among students and
should use a variety of
teaching methodologies.
Assessment of a law student’s first year
performance should include an assessment of the legal ethics aspects of the
courses
which have been taught.
In the later years of law school, legal
ethics instruction should be conducted using the pervasive technique. It should
recognize
and supplement the instruction received during first year, and should
offer a wide array of and broad exposure to educational experiences
in legal
ethics. Clinical courses should also be given high priority.
In addition,
there should be a further “stand-alone” course preferably in the
third year of law school which would:
This course
would ideally be taught in small groups, and students should be encouraged to be
personally engaged in the learning process.
Teachers should be prepared to
experiment with innovative teaching methodologies and the course should be
assessed in the same manner
as other courses.
Legal ethics instruction
During Bar Admission Programmes: at this stage in a student’s legal
education, Cotter advocates that
any further instruction should be directed at
(a) the rules, roles and responsibilities of the legal profession and lawyers;
(b) the identification and resolution of ethical dilemmas; and
(c) law office economics and management.
Legal ethics instruction should
be provided in practical terms and should assume an academic understanding of
legal ethics issues
and analytical frameworks, and build upon this understanding
in practical ways.
In relation to (a), instruction should emphasize the
doctrinal aspects of legal ethics, that is, the organisational and regulatory
structure of the profession in the jurisdiction, the law relevant to the
profession and the rules of conduct for lawyers in the jurisdiction.
In relation
to (b), instruction should take place in the context of simulated files and
transactions commonly experienced by junior
lawyers. The legal ethics issues
embedded in the files and transactions should be selected in consultation with
senior practitioners
and with reference to empirical findings regarding the
types of ethical dilemmas commonly experienced by junior lawyers in practice.
Evaluation of pre-admission instruction in legal ethics should be by way of
assessment of ability to identify and resolve legal dilemmas.
Criteria for
assessment should be identified, and would ideally include the following:
It
is important that there be clear articulation of evaluation criteria to
students.
Legal ethics instruction during Articling: Cotter sees the need
for continued education in legal ethics after the completion of formal
pre-admission education. Such education should emphasise the opportunity to
observe and learn about the role of the legal profession
and the roles of
lawyers and about ethical dilemmas in practical contexts. The programme of
instruction should be relevant to the
kinds of dilemmas faced by young lawyers.
Cotter believes evaluation at this stage should be limited only to those
students who demonstrate
consistent failure to follow appropriate ethical
guidelines.
Legal ethics instruction during Continuing Legal Education
(“CLE”). Cotter believes that there should be “general”,
“advanced” and “remedial” programmes within the CLE
curriculum as it relates to issues of legal ethics. Providers
of CLE should
undertake investigations to determine which issues and methodologies are most
appropriate for inclusion within the
CLE curriculum, and should design
appropriate instructional seminars, and participate in the design of legal
ethics elements of remedial
seminars.
There are two possible structures or
CLE courses in legal ethics:
Cotter suggests that specific courses in legal
ethics will be unpopular and may fail to attract many participants.
The
purpose of instruction in legal ethics in CLE courses at a basic level is to
acquaint practitioners with their basic ethical obligations
and the context in
which they arise, and to inform them of recent developments relevant to the
legal profession and their work as
lawyers. Instruction at an advanced level
should be designed to enable practitioners to identify and resolve ethical
issues relevant
to specialised areas of law, and to incorporate this resolution
process into their general framework of ethical decision making.
Comprehensive Skills Development Programme
A comprehensive skills development programme is
currently being taught at the Marshall-Wythe School of Law, College of William
and
Mary.47 The programme consists of courses designed
to teach skills ranging from research and writing and trial advocacy to
“recognising
and thinking cogent thoughts about ethical problems and ...
obtaining interpersonal skills to enable the execution of carefully thought
out
plans to resolve ethical problems.”48
The
programme is taught over four semesters and has the following as its goals:
The legal skills course covers the following topics:
The programme proceeds on concurrent tracks
— classroom instruction and simulated practice. The programme has as its
core client
representation, consequently the entire programme is organised
around a simulated student law office and its need to deliver effective
competent and ethical service.
Course instruction includes components such
as reading assignments, class meetings of several varieties (large group and
small group),
activity critiques, written work critiques, panel discussions and
interaction between second year students and first year students.
The course
is graded on both a letter grade system and an honours/pass/fail system.
Students failing a semester of legal skills may
not continue in the programme
until they successfully complete the failed semester. Progress is evaluated by
examining the quality
of the student’s performance of all assignments,
activities and responsibilities during the semester.
In the legal skills
course ethics is not treated as a “side” topic but rather permeates
throughout the programme’s
two years’ of operation. Issues of legal
ethics are approached from a wide variety of perspectives including the
following:
Unlike ethics teaching in isolated activities such as negotiation or interviewing exercise that appears and as quickly disappears, students deal with a single individual in the role of client, another in the role of adverse party, others in the role of adverse counsel, others in the role of co-counsel and still others in the role of court personnel for up to two years from the beginning to the closing of the case. As such, a relationship poorly begun must be repaired; unethical behaviour of fellow members of the bar must be reported under appropriate circumstances; and consequences of lawyering conduct are realized ... In the program students by dealing with the clients from beginning to end have greater opportunities for reflection on the ultimate lawyer ethics questions that arise only through experiencing long term the day-today activities and relationships of lawyering.50
Although the course has been in place for a limited time the faculty administration is happy with the way in which the course is working so far. The structure has apparently been well received by students.
Comprehensive Programme — Harvard Medical School Curriculum
In a recent discussion paper on learning ethics in the Harvard Medical School curriculum the following areas were seen as essential elements of a comprehensive programme emphasising ethics themes:
CONCLUSIONS
As there are multiple objectives to be achieved in
teaching legal ethics it is no wonder that there is little consensus about the
approaches, methods and materials that should be used. What is clear is that
instruction in legal ethics should not be undertaken
with the aim of inculcating
particular ethical values in students. Rather, such instruction should aim to
sensitize students to the
ethical dimensions of practice as a lawyer, provide
insight into the nature of the legal profession and cultivate a willingness to
engage in reflective judgment.51
It is important
that students are prepared for ethical decision making as they are prepared for
any other area of practice, if for
no other reason than the fact that ethical
issues pervade a practitioner’s life. The challenge is in developing a
course structure
which fulfils the aims and objectives of teaching legal ethics,
does not alienate students and importantly provides students with
a framework in
which to address ethical issues as they arise throughout their professional
lives.
* Allen Allen & Hemsley, Solicitors.
© 1993. [1993] LegEdRev 6; (1993) 4
Legal Educ Rev 141.
1 WB Cotter Professional Responsibility Instruction in Canada: Coordinated Curriculum for Legal Education (Quebec: Joint National Committee on Legal Education of Federation of Law Societies of Canada and Council of Canadian Law Deans, 1992) 1–6.
2 DL Rhode, Ethics by the Pervasive Method (1992) 42 J Legal Educ 31, at 44.
3 Id at 49.
4 Id at 50.
5 Id at 32.
6 I Johnstone & MP Treuthart, Doing the Right Thing: An Overview of Teaching Professional Responsibility in Teaching Legal Ethics: a Symposium (1991) 41 J Legal Educ 75.
7 DL Rhode & D Luban, Legal Ethics (New York: Foundation Press, 1992) 1021.
8 AF Watson, Some Psychological Aspects of Teaching Professional Responsibility (1963) 16 J Legal Educ 1, at 3.
9 Cotter, supra note 1, at 1.
10 Cotter, supra note 1, at (ii).
11 Johnstone & Treuthart, supra note 6, at 88.
12 Cotter, supra note 1, at 2–36 to 2–37.
13 Rhode, supra note 2, at 52.
14 Id.
15 MZ Johns, Teaching Professional Responsibility and Professionalism in Legal Writing (1990) 40 J Legal Educ 501 (quoting the Annual Meeting of the American Bar Association, 22 August 1989).
16 Cotter, supra note 1, at 242 — 243.
17 Johnstone & Treuthart, supra note 6, at 93.
18 Id.
19 Cotter, supra note 1, at 2–42 to 2–43.
20 JE Moliterno, An Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere (1991) 60 Cincinnati L Rev, 83, at 133.
21 Id.
22 Id.
23 Id.
24 Id at 117.
25 Id at 126–7.
26 Johnstone & Treuthart, supra note 6, at 82.
27 Watson, supra note 8, at 20.
28 Johnstone & Treuthart, supra note 6, at 98.
29 Id.
30 Johnstone & Treuthart, supra note 6, at 99.
31 Rhode & Luban, supra note 7, at 995.
32 Johnstone & Treuthart, supra note 6, at 97.
33 Id.
34 Id.
35 Id.
36 Johnstone & Treuthart, supra note 1, at 100–101.
37 Id at 96.
38 Moliterno, supra note 20, at 106.
39 Johnstone & Treuthart, supra note 6, at 97.
40 Moliterno, supra note 20, at 106.
41 Rhode, supra note 2, at 51.
42 Cotter, supra note 1, at 2-20 to 2-21.
43 Rhode, supra note 2, at 43.
44 Id.
45 Foreword to Cotter, supra note l.
46 See generally, Cotter, supra note l, at ch 4.
47 See generally, JE Moliterno, Teaching Legal Ethics in a Program of Comprehensive Skills Development (1990) 15 J Legal Prof 145.
48 Id at 147.
49 Id 163.
50 Moliterno, supra note 47, at 166–167.
51 Johnstone & Treuthart, supra note 6, at 102.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdRev/1993/6.html