My former colleague John Flood is a visiting professor at the University of Miami this semester, where they have got him teaching the compulsory Professional Responsibility course. In a recent blog entry John has rightly described professional responsibility and ethics as the lost territory of English law. “Why is it”, John asks, “that the business schools have been able to grasp the importance of teaching ethics, but law schools haven’t?” A good question – and one I’ve commented on in response to John’s entry, but I hope its worth expanding on that response here too.
John tends to point the finger at professional disinterest, and I’m sure that plays a part. The glib answer to the English denial of legal ethics has tended to be “no Watergate” – ie there has been no major crisis of professionalism that has forced the profession (and the academy) to seriously confront the problem. But I doubt that’s the whole story.
Without trying to be exhaustive about it I think there is a range of factors. The English began codifying their professional conduct standards only about 70 years after the US – so the law of lawyering itself is still not as established a part of the culture. The greater separation of academic and vocational education I’m sure is also pretty key, and with it the tendency both of apparently vocational subjects, like ethics, to be marginalised in the academic curriculum, and of the vocational courses to lack the critical, engaging approach that we see in the best professional responsibility courses in US law schools. Consequently we also still lack any kind of critical mass of scholars. There are few discrete courses on legal ethics at the undergraduate stage in the UK, and it is notable that in the 10 years since Kim Economides 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 pull on the journal has been southwards, with Australia now providing the greatest number of contributions. This is hardly surprising given that ethics is now far more established as a standard part of the Australian LLB.
Is this likely to change? In some respects its quite difficult to be optimistic. The Lord Chancellor’s Advisory Committee pushed for a greater emphasis on ethics in its First Report published in 1996. This created a definite flurry of activity in the mid to late 1990s (of which we were part), but as I’ve just observed, it has not really been sustained. The Law Society subsequently set up an Ethics Education Forum to advise it specifically on ethics education in its work on the Training Framework Review, though quite what effect that body had is now hard to ascertain. Its regulatory successor, the Solicitors Regulation Authority, has recently commissioned Economides to review the terrain and make further recommendations. The outcome of that process remains to be seen, but whatever Kim Economides recommends is likely to meet opposition. There is no desire among academics to re-open negotiations on the Joint Statement that govern the professional requirements for the LLB, and some, perhaps understandable, reluctance to see these foundation subjects extended. A deepening of ethical training at the vocational and work-based learning stages of training might prove easier to implement, though that might still seem to be too little, too late. And to introduce more ethics at any stage will mean that teaching ad training institutions will have to address a significant knowledge gap.
At the same time these arguments are surely all wearing a little thin. Our approach is now significantly out of line with most of the major Common Law jurisdictions. We have confronted knowledge gaps before, and survived, and there is already a solid foundation of academic literature on which to build. Moreover there are numerous ways in which a more intellectually satisfying legal ethics (which could be informed by moral philosophy, axiology, the history and sociology of the professions, etc) could enrich both the academic curriculum and vocational training, and help us take the study of the legal profession itself more seriously. There is probably more pedagogic literature on teaching legal ethics than on most substantive parts of the curriculum. In short, the tools are all there. in this context, for legal educators to continue to deny ethics a serious place in the law curriculum starts to look like not just a failure of our ethical imagination, but an abnegation of our own professional responsibilities.