At Stanford University for the fourth International Legal Ethics Conference, hosted by Stanford Law School and the Center for the Legal Profession. The main conference started yesterday. There has been a fair amount of discussion and debate about legal ethics education, including a plenary panel yesterday morning on whether legal ethics should be a required course, with contributions from Stephen Pepper, Christine Parker, Andy Boon, Brent Cotter and Richard Wu. Chaired by Kim Economides, it was perhaps less than a groundshaking surprise that the panel agreed that it should; well it is a legal ethics conference after all, but an interesting discussion nonetheless. For most of the conference however I have been engaging with more ‘mainstream’ ethics and regulation, rather than education per se. It has so far been a great conference. Most of the panels are multi-jurisdictional, and this has worked very well in drawing out interesting contrasts and synergies.
I’m attending another great session at the moment, with Richard Devlin (Dalhousie, chair) Adam Dodek (Ottawa), John Dzienkowski (Texas), Kath Hall (ANU) and Kay Lauchland (Bond) on the duty of loyalty. Loyalty is, of course, a core value of the profession, constituting a duty in its own right, underpinning ideals of zeal, and reflecting the fiduciary basis of lawyer-client relations, but also, as the papers by Dodek, Dzienkowski and Lauchland noted, underpinning principles of conflict of interest, and generating all sorts of interesting revolving door problems, former client conflicts (that tend not to be treated as conflicts), and difficulties for lawyers engaging in pro bono work that could bring them into conflict with their firms’ regular clients.
I was particularly interested in hearing Kath Hall’s paper, focused on issues of zeal and good faith in corporate/transactional work. Her paper looked at how hyper-zeal might be rationalised and not be perceived as an ethical failure by lawyers. She particularly emphasised the affective/emotional component of loyalty. which is reinforced by lawyers’ stories and their group experiences as members of the law firm community. Part of Kath’s solution appeared to involve importing the duty of good faith from corporate law as way of extending ideas of loyalty beyond the norm. In particular she emphasised that a duty of good faith could extend consideration to non-clients, and would expressly include a duty to uphold the law. I think this point is an interesting one, though personally, as argued in Nicolson and Webb (Professional Legal Ethics, Oxford, 1999), I’m not sure this is the right order of priority. Although fiduciary law has conventionally treated good faith as a subset of loyalty, I think a principled case can be made for viewing good faith as the overarching duty, setting a limit on zeal from above, not below.
And just to prove there really is no escape, John Dzienkowski’s paper did raise an educational issue by touching on the question of how live clinics might themselves create particular conflict (checking) issues – not an issue I’d ever really considered in the UK context.