Je presentation

The Effective Teaching of Legal Ethics-Theory and Best Practices

Varun Vaish (2008-74)

Structure

Link between Legal Education and Ethical Lawyering.

Ethics, the Dog of law School-Why? Theory for and against-Ethics need not,

cannot and should not be taught. Best Practices.

Link between Legal Education and Ethical Lawyering.

Anthony Kronman penned a treatise in 1993 on the increasing decline of ethics and morality in the legal profession, wherein he expressed his concerns about the legal profession losing its foundational ideals as a whole.

He opined that for the most part legal education was to be blamed for this problem since it did not create lawyers ‘cultured in ethics and grounded in morality’

While enunciating an intrinsic link between legal education and the legal profession, Felix Fletcher also observed that the law is essentially what lawyers are and lawyers are in essence what law schools make them.

A firm conviction exists that the problem of declining virtues in the legal profession finds its roots in the law school

Link between Legal Education and Ethical Lawyering. In 2005 report of the Working Group on Legal

Education (an initiative of the National Knowledge Commission established by the GoI) highlighted that the main aim of legal education was to impart justice oriented education to young minds who have consciously chosen to be lawyers.

This aim, it stated, “requires that high standards of professional ethics and morality, coupled with a spirit of public service, be inculcated in a law students from the very beginning.”

Link between Legal Education and Ethical Lawyering. Legal ethics it is felt requires of critical reflection

vis-à-vis professional expectations, which it is felt can be developed only during law school.

Furthermore the adoption of ethics while practicing the law, where one is burdened with expectations of doing well, with no real support from other lawyers, who would in all likelihood be dealing with similar dilemmas, becomes very difficult.

Legal Ethics-Dog of law school Unfortunately the study ethics and morality in the

legal profession constitutes a minuscule portion of the overall curriculum.

Such is the indifference to the course in question that one Harvard Law School Faculty was quoted as stating that such a course "is not important, or that it's all obvious or irrelevant, because the demands of the world will dictate how they behave."

Most attribute this current state of affairs to the Bar Council which has made it mandatory for this course to be taught, thereby chaining faculty, whereas many other attribute it to the neglect shown to the course by the faculty itself to issues of ethical importance.

Why LE is treated as 2nd class? An explanation as regards to why courses on Legal ethics are

relegated to a second class status has been offered by Ronal Pipkin in his study on legal education in the 1970’s which squarely attributed the blame to a “curricular paradox” that exists in law school syllabi.

In law school teaching, first and foremost analytical decision making is sought to be inculcated within students using the Socratic Method of teaching.

Sensitivity bought about by teaching through discussions, ranks last in the hierarchy of educational goals at law schools.

Traditional law school debate breaks down and student who have otherwise been taught to master the art of rational logic, are suddenly faced with having to deal with ethical positions which involve fair degree of personal and emotional stakes.

Pipkin in another study conducted in 1976, concluded that as a law student is on the verge of graduating, he views his time spent in law school with increasing disdain and hence the seeds of legal ethics mustn’t be sown at such an unreceptive time, i.e. late in the law school curriculum.

Then there exist claims of the intrinsic hypocrisy in Law Schools themselves, which portray to students the fact that they do not always follow the laws they preach.

For example, pro bono work is considered an essential tenet of legal professional responsibility, however law school placement offices hardly ever direct students towards non-profits, but rather largely towards corporate law firms representing them to be the only viable mainstream career option after law school.

This dichotomy further serves to undermine legal ethics in the mind of the law student.

Ethics need not, can not and should not be taught? Members of the faculty often feel that ethics need

not be taught in law school, in part because they feel that there should be a clear separation between the academic study of law as a discipline and the practice of law as a profession.

However in counter to this argument it is said that thought the study of ethics has a strong practical element, one cannot say that it is not an academic subject in its own right.

Ethics need not, can not and should not be taught? Need not be taught-They believe that a invisible

hand rewards ethical practitioners, which in turn provides them with an impetus to remain ethical and disciplinary committees exist merely to weed out a small number of truly bad apples.

Though this may be true, it still does not take away from a law schools duty to provide tools to lawyer to help them make their decision or understand the consequences thereof, on way or the other.

Ethics need not, can not and should not be taught? Cannot be taught- They operate under the

belief that law students are young adults whose values are “fully formed prior to law school and are not likely to change”.

It has been adequately proven that ethical absorption continues well into adulthood and values can change at later stages of life.

Ethics need not, can not and should not be taught? Should not be taught- Prof. langdell’s case study method.

This was a time when higher education was undergoing a paradigm shift from moral to scientific.

Professor Langdell taught the law as a science wherein he distinguished between facts, which could be taught, and values, which could not.

Ethics were in the realm of values which could not be taught.

Langdell carried the analysis and dissection of appellate cases with the same precision of as that of a scientist in a chemistry lab and while most law professors don’t view themselves as scientists, they continue to apply the langdell’s pedagogical approach and strictly separate legal from ethical questions.

Ethics need not, can not and should not be taught? Students often ask questions pertaining to ethics of a

particular legal doctrine only to be reprimanded by their professor who would state that the subject of the class was law, not ethics.

However today the fact-value distinction is no longer thought to be relevant and ethics have regained their place as a respectful and serious academic subject throughout higher education.

In fact even the scientific fraternity has accepted the fact that science and ethics do in indeed mix and are not mutually exclusive.

Best Practices-Teaching of Ethics Pervasively Kronman and Edwards both have argued that the

real problem of declining ethical standards and morality starts at law school where ethical education forms a minor percentage of the focus levied on courses such as Constitution or Contracts.

Students are left astray to garner ethics and develop morality all on their own and while some do, most choose to ignore developing it because it does not have as much weightage as a course in Penal laws or Corporate law.

Teaching of Ethics Pervasively-UCLA Case Study. The pervasive method “teaches students the

skills . . . to identify and analyze (ethical questions) in settings where ethics is not the primary focus of attention.

UCLA developed a mechanism to impart such education via an infusion of ethics ‘throughout the law school curriculum’, and not just during a single distinct course.

Focus of this method- The ultimate goal sought to be achieved by this

new method was that students should know how to recognize a legal ethics issue, even if they could not immediately find “the right answer, while at the same time developing some sense of, self-regulation, individual responsibility, moral and professional questioning, and concern for the public interest and welfare.

The infusion method in essence required faculty to develop materials and exercises that would integrate legal ethics into their substantive courses.

Infusion This infusion no doubt required some measure of re-

education of the law school faculty, wherein they were trained to utilize new teaching technologies, such as experiential exercises, film and videotape, role-playing, historical material, and real case problems pertaining to ethics dilemmas in traditional law school courses.

Participatory and experiential learning in specific practical contexts forms the base of such learning with the specific focus of making students proficient in the making of decisions where rules were less than clear or unambiguous and where lawyers were called upon to consult their own personal and professional ethics.

Benefits At UCLA the benefits of exposing law students

regularly to legal ethics in the context of substantive law was that students began to view legal ethics not as a distinct field but rather as an essential component of everyday practice as a lawyer.

They also garnered the ability to identify ethical issues in different contexts with greater clarity.

Exposure to ethics early in the law school so that students will already have a foundational framework as they begin to encounter ethics in their infusion courses in other substantive subjects.

Ethics as the most important subject in law school. They believe that to teach ethics seriously it must

be restructured as the most important subject in law school.

It has been suggested that innovations in the teaching of legal ethics will not have any significant impact and only the acknowledgement of legal ethics as the most important subject in law school curriculum will lead to significant changes in the pedagogy surrounding legal ethics.

Why as the center of the curriculum?-Fordham University Law School. This notion is born out of the belief that when

viewed from the lens of pragmatism, legal ethics is the only subject that every student who becomes a lawyer will encounter in practice.

This rechristening of ethics as the most important subject in law school will not surprisingly require significant overhauling of the law school curriculum.

Course Structure Firstly Legal ethics would have to be a course

carrying a minimum three credit in the first year of law school to convey the clear message to both students and faculty that that ethics is a foundational component of what it means to think like--and to be--a lawyer.

This particular course cannot merely be indoctrination in the rules of professional ethics, but instead must teach those rules in context with a focus on their purpose and history, and always with fair concentration on the role of lawyers and their dominant conception as aids in distributes justice and maintenance of order.

Contd. Secondly where most law schools require only one course in

legal ethics to date, the new curriculum would require a second more advanced course on legal ethics towards the end of one’s law school tenure, for two reasons.

First to demonstrate the fact that ethics remains central to their development as lawyers and also to incorporate a broad perception of ethics into their final assessment of their practical experiences as students, including the formation of their self-image as a practitioner in the particular field they will pursue after graduation.

Fordham Law has led the way by providing such courses in the final year that are specific to the chosen area of practice of the concerned law student, such as Ethics in Corporate Practice, Ethics in Criminal Advocacy, Ethics in Public Interest Law, and Lawyering for Individuals etc.

University of Maryland-Best Practice Another major positive development as witnessed in

University of Maryland law school has been the infusion of ethics in moot courts and pro-bono legal aid work and other clinical programs, as these programs, have proven to be significantly more effective than classroom teaching in terms of providing a more visceral knowledge to students regarding professional responsibility in general and providing accessibility to the justice system to the indigent in particular.

Harvard,West Virginia University College of law, NYU-Reliance on Unorthodox Materials. As per Dean Wilkins of Harvard Law School, while casebooks

on legal ethics are still important, they are second in importance class to clips being shown of Legal T.V. shows that focus on ethical and moral dilemmas that lawyers face.

“The way to engage people into thinking about ethics is to give them stories--not rules, not abstractions,” says Jim Elkins, who teaches at West Virginia University College of Law.

New York University's Stephen Billers shares the same sentiment when he states that: “The more we can stimulate or incorporate a story in which the student plays a role, the better the course.”

Reliance on Unorthodox Materials Contd. Another methodology increasingly being applied by

law schools are the viewings of video taped interviews of lawyers who are disbarred, who are otherwise viewed as ‘aliens’ along with interviews of their clients, to bring about a better understanding of the reasons for their conduct and establish the more humanistic side of the story .

This it is felt imprints more on the minds of students, then reading facts about a particular incident

Cont.-Connect with Practicing lawyers In addition many law professors are of the opinion

that if legal ethics are to be taught it should ideally be done through collaborations with practicing lawyers and individuals already engaged in the legal profession.

For example the American Inns of Court is a voluntary organization that brings together Judges, Senior Lawyers and Law professors, and organises them in teams with 3rd year law students and young lawyers for the purpose of carrying out presentations in relation to advocacy issues and ethical dilemmas, all in an attempt to foster a mentor-mentee relationship which develop skills in professionalism.

Lessons from UWO and U of T It is felt that law schools can enhance their teaching of legal ethics

by having comparative information of what is being done in different jurisdictions:

1) Committee on Professionalism2) Mandatory First year Course on Professionalism and Legal

Ethics.

Chief Justice of Ontario's Advisory Committee on Professionalism.

This committee consisted of representatives of the judiciary, the Law Society of Upper Canada, the legal academia, and various provincial and county law organizations.

The goal of the committee was to spearhead various projects, make recommendations and act as a clearing house for ideas that would promote professionalism.

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Committee on LE and Professionalism. Since its inception the committee has performed three specific task for the

growth of professionalism.

firstly laying down a definition of professionalism to help lawyers better understand the importance of professionalism and its impact on their work and on the justice system.

Secondly the committee organizes two conferences each year, with the aim of producing scholarly articles and commentary on the various aspects of legal ethics and professionalism

Third and most importantly the committee has established a sub-committee with the specific task of promoting and improving the teaching of professionalism with a representative in every major university in Ontario.

This sub-committee organizes conferences in various law schools, which centre around themes such as, challenges involved in teaching legal professionalism, making professional education a life-long process, teaching civility in the courtroom, and improving the instruction and evaluation of ethics etc.

LE infusion in other courses database. One of the primary concerns of non-specialist faculty was

the fact that resources needed to be developed to make it easier for non-specialists to teach legal ethics as a component of their courses.

Hence the sub-committee decided to create a database or inventory of teaching resources for legal ethics and professionalism.

It asked professor in each law school to gather information from his or her institution to be sent to the committee in order to gather a wide range of material.

Relevant books, articles, unpublished conference materials, and cases would be included, as would course outlines, assignments, exams, and problems for discussion and organised not only as topic areas within ethics, but also in terms of how they might be used in other law school courses.

Ethics as a mandatory 1st year Course

Teaching ethics in the first year has the advantage of exposing students to at least the basics of ethics, making them more interested in taking optional courses on ethics later on.

In addition ethics and professionalism courses are sufficiently foundational that they should be introduced in the first year of legal studies.

However it is felt that whatever is gained from first students in terms of their enthusiasm and interest in the course is lost in terms of their lack of knowledge as first year students may find it difficult to understand the issues and the contexts in which they arise.

Teacher at UWO were advised to endeavour to pitch the material at the right level.

Structure of the 1st year Course at UWO It ran for ten weeks in the spring term from February to April.

Each week the class met for between two and three hours.

The teaching was mainly by lecture although there were some debates between the instructors and students, based on the understanding that that if the teaching of legal ethics is to move beyond the mere teaching of rules and provision of a professional code and cause students to introspect on their own values and their relation to the profession. Small groups and intensive discussions are critical.

Central topics for the lectures were an introduction to ethical theory, an introduction to legal ethics, the role of the regulator, the discipline process, integrity and professionalism, c Confidentiality and its exceptions, conflict of interest, civility in the adversarial system, ethics of advocacy, and defending the guilty.

Developments at the University of Toronto

The first year at the University of Toronto features what are called “bridge weeks”.

During each of these weeks, which may be scheduled at different times throughout the course of the academic year, the normal course schedule is suspended and students spend the week on the intensive examination of a particular topic.

Previous topics have included critical legal studies, law and development, law and economics, and legal pluralism. Students write a paper for each of the three weeks. The two shorter papers are on a pass-fail basis and the longer one is graded.

In January 2003 the University of Toronto decided to devote one of the bridge weeks to legal ethics, and this has continued each year since then.

This method has the evident benefit of exposing first year students to legal ethics in an intensive manner without the rigor of a full term course, and where students are graded by way of a short paper on a pass and fail basis.

“I had learnt the true practice of law. I had learnt to find the better side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me, that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my soul.”

-        Mahatma Gandhi, 1927Thank you