The place of ethics in legal education
Sunday, 13th February 2011 2 Comments
There is a discussion happening currently in legal education circles about the suggestion from the Law Society that ethics should be taught to law students. Professor Richard Moorhead of Cardiff University wrote an excellent blogpost on the subject in December, around the time that the Law Society’s report was published. He wrote that he supported the basic premise of teaching ethics to law students, so long as certain things were taken into account. I shan’t go through them now, because that would be effectively regurgitating his entire blogpost, and I wouldn’t do it justice; I advise you to read it for yourselves.
I tried writing this post a couple of weeks ago, but couldn’t seem to find an angle for it. That angle was presented to me by a friend of mine a couple of days ago. She attended the Student Law Conference this week, where she attended a talk by Lady Hale, a Justice of the United Kingdom Supreme Court. After giving her presentation, Lady Hale invited questions from the gathered mass of law students.
One of the questions asked was “How do you balance integrity with achieving your clients’ objectives?” I studied some ethics at University and found it very interesting from a philosophical point of view. But I don’t expect that it will have any practical bearing on my career as a lawyer.
The student’s question to Lady Hale is exactly the type of issue that legal education, if it is to attempt to bring ethical teaching to bear on the future lawyers of this country, should attempt to answer. Navigating the shades of grey and working right up to the boundaries of legality in order to achieve a client’s objectives are what some people would say denotes a good lawyer. But how is this taught?
This week, I finally read the Law Society’s report on the teaching of ethics to law students, which contains a draft syllabus for the teaching of legal ethics on Qualifying Law Degrees (QLD), as one of the foundation subjects. I was linked to it from Neil Rose’s article on Guardian Law about the effect that the new Alternative Business Structures might have on legal ethics, in which Neil recounts his time working on the Solicitors Regulation Authority’s (SRA) legal ethics helpline. “My experience,” he said, “is that solicitors are generally seeking reassurance they are doing the right thing rather than looking for ways around the rules.”
On the face of it, it appears that to teach ethics as I was taught it in my philosophy elective during my degree, or even how the Law Society intends to do so (if the draft syllabus I linked to earlier is adopted), is not quite the right way to go about it. It seems to me to be a practical aspect that needs to be taught. One would hope – though sadly, experience tells us that a mere hope is all this remains – that those who wish to enter a career in the law have a moral code that they wish to adhere to. I don’t believe that learning the theory of ethics will benefit students, certainly not as one of the foundation subjects on a QLD or on a Graduate Diploma in Law (the so-called “law conversion course”).
What can be inferred from Neil’s experiences on the SRA’s helpline is that the guidance lawyers sometimes lack is that of interpretation. But is this teachable? Is it practical to do so? After all, each situation faced in practice will differ, and it is impossible to cover all possible eventualities of every law that is taught on a QLD. Perhaps that is the thinking behind teaching ethical theory; if you cannot teach every situation, at least attempt to arm students with a framework from which to approach those situations. The problem is, I doubt that the proposed framework is practically applicable.
I wonder whether this ethics debate is really addressing the heart of the problem. At University, the ethics module I took was worth 10 credits, so I chose another module worth 10 credits to complement it. That module was Critical Thinking – how to form valid arguments, and how to identify when a conclusion does not logically stem from the reasons given. It is that module which I believe will have greater practical application in my career; it was those skills which led me to question the validity of using ethics to solve this problem.
If it really is just a problem of interpretation of laws, as I suspect it might be, does that point not towards the need to add ethics to the syllabus but simply to improve the standard of legal education as a whole? Isn’t interpretation one of the core skills that legal training is supposed to provide? Of course, once a lawyer begins to practise they should be taught about conflicts of interest and money laundering and other practical ethical elements. But, in my opinion, those should not be compulsory subjects on a law degree.