Saturday, February 02, 2008

Professional Responsibility/Legal Ethics

While I am at the University of Miami Law School I am teaching Professional Responsibility, a compulsory course for law students. It takes students through the law governing lawyers and the rules of conduct they should abide by when in practice. I like teaching it. I also think it gives the students an opportunity to reflect on what practice might entail for them. It's good that they have these spaces to reflect and think.

I am using Lisa Lerman's and Philip Schrag's Ethical Problems in the Practice of Law as my text. It's a great book with clear exposition of the core issues--e.g. when can you talk about your cases and what can you say?--filled with problems and cartoons (What would we do without the New Yorker?)

For those from the UK, this emphasis on legal ethics might seem over-zealous. But I'm not so sure. I gave a paper on lawyers in international business transactions to the faculty here recently and a number of the questions directed at me concerned ethical issues, which surprised me.

Despite the huge rise in consumer complaints against lawyers in the UK, which has led to the effective abandonment of self-regulation in favour of external governmental regulation (see the Legal Services Act 2007), there is little awareness of this in legal education.

With the exception of scholars like my colleagues Andy Boon and Julian Webb, few give the topic any attention. In legal education generally, ethics is not addressed until after the academic stage. So that in three years of studying law, it's absent.

During the Legal Practice Course ethics is treated as a "pervasive" subject. This means it crops up occasionally in various places and is then forgotten. There is no sustained examination of the problems and difficulties. Ethics and professional responsibility are the lost territories of law.

This was discussed in a paper I read recently on pupillage. The interviews with barristers and pupils showed that although high grades from the elite universities were a necessity for entry to the Bar--and the Bar thinks it's being meritocratic when it does this--the interview process was such that these educational and cultural affinities would play a big role in one's chances of entry. Barristers argue they are more interested in academic excellence, advocacy and mooting skills and experience, being able to construct an argument, poise and confidence, which are, of course, a function of one's background. Using these kinds of ascriptive criteria, ethics training is perhaps redundant. Some chambers, however, have internal ethics exercises, but generally pupils absorb ethical ideals by osmosis from their pupil masters. Of course if you widen entry the scope of shared values will shrink and professional responsibility will rise in importance.

The British legal profession and the academy has lost the plot on this, if they ever knew it existed. Why is it that business schools have been able to grasp the importance of teaching ethics, but law schools haven't? Is it that lawyers have managed to escape censure in recent scandals whereas business executives have been publicly exposed? Not quite.

Recently a senior partner of Freshfields was sanctioned for involving his firm in a conflict of interest scandal during a major takeover. Was the partner criticized for his unprofessional behaviour? No. The prevailing sentiment among the profession was one of sympathy and a feeling of "There but for the grace of god go I." How differently it would have been treated in the US.
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1 comment:

Julian W said...

Its good to know Miami have got you doing some proper work John :-)

You ask a good question that the few of us who take legal ethics seriously as an academic subject have all been pondering. The glib answer, as I'm sure you know is "no Watergate". That may be part of it, but I'm sure its not all. The English began codifying their professional conduct standards only about 70 years after the US - the law of lawyering is still not really part of the culture. The greater separation of academic and vocational education I'm sure is pretty key, and with it the tendency of more vocational subjects to be marginalised in the academic curriculum. Consequently we still lack any kind of critical mass of scholars - its notable that in the 10 years since Kim and I started editing our journal Legal Ethics, the numbers of British scholars regularly contributing to the field has not significantly increased - indeed the gravitational focus of the journal has gradually moved south, with Australia now providing the greatest number of contributions. Not surprising given ethics is now established as a standard part of the Australian LLB. And underneath it all I can't help but feel lies the sometimes rather smug complacency and conservatism of both the academy and profession in the UK....