Should legal ethics be taught at the academic stage?

England and Wales is now in the minority of (major) Common Law jurisdictions where some element of ethics education is not a required part of the law degree-level education for those wanting to enter the profession. Kim Economides and Justine Rogers published a report in 2009, commissioned by the Law Society, recommending the introduction of legal ethics at the academic stage. So far there has been very little discussion of that recommendation, though there are a couple of exceptions in the blawgosphere – see comments by my friends and regular bloggers, John Flood and Paul Maharg – the latter as part of an interesting set of comments on Melissa Hardee’s keynote at the 2009 CELTS Conference. But its gone rather quiet since then. UKCLE, in association with the Law Society, is therefore holding an event in London on 10 May to start what we hope will be an open and constructive debate between the academy and the profession. Registration is open on the UKCLE website; I hope we can get a good turn-out.

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Beyond Text Conference – Edinburgh

I was up in Edinburgh this weekend, having been invited by Zenon Bankowski to be a commentator (along with Tony Bradney) on papers that he and Maks Del Mar had written for the opening of their conference, Beyond Text in Legal Education. The conference was the final event in a series of activities that have formed a project funded by the AHRC as part of its Beyond Text programme. Day 1, Saturday, focused on ‘theory’. Sunday focused on ‘practice’. It was a really excellent and engaging event. Most of those attending have been participants in earlier stages, and it was a really good, international, mix of people – academics (not all law), legal practitioners and practitioners in the arts, and these are by no means mutually exclusive categories – like I said, it’s a really interesting group.  Paul Maharg has written an excellent general review of the whole event at Zeugma, but there are three particular elements of the first day that I’d like to focus on here.

Zen and Maks’s opening papers made a distinction between the education of attention and the education of encounter. I like that distinction; it seems to ‘work’ as a phenomenological account and has practical (and ethical) resonance, and application. Attention (drawing on thinkers such as Iris Murdoch, Simone Weil, Martin Buber, and Roland Raymond Gaita) emerged as an encounter of close attentiveness to objects and contexts (Murdoch) – of objects (including persons) as things in themselves and in their settings, and an openness to experience that is both detached and loving (Weil). Attention is I understand it from their presentations seems, almost paradoxically, to be both passive in its openness, its ability to wait (attendre) and “receive in its naked truth the object which is to penetrate [our thought]” (Weil), and active, in a sense of both active contemplation, and as a responsiveness, a readiness to receive and care for (again attendre) another. This links to the importance of encounter. The encounter with another is understood as more than just an idealized encounter. It is the (actual and embodied) context in which attention happens. Without encounter we have no call to attend, but attention also enables us to come, openly, patiently, and trustingly, to encounter. The question then is how do we build the practices of attention and encounter within the law school?

A number of suggestions emerged out of the later sessions. I’ll focus on just a couple of the sessions here, the two that were the most interactive (and I appreciate this is no coincidence, it not just reflects my bias towards active learning, but I think these also worked well in demonstrating the potential for taking attention and encounter beyond text. Alan Lerner (U. Pennsylvania) took us through an exercise in which he gave us a fact scenario and then asked us quickly to rate the culpability of the five actors on a scale of 1-5 indicating least to most culpable (with no split votes or shared scores). I won’t entirely spoil the story, but the point was, when we compared results, that there was no single actor who didn’t have both ones and fives, and pretty much everything in between. Alan made the point that neuroscience demonstrates that our responses are based primarily on emotion – the emotional response ‘kicks-in’ before the rational brain can take charge – and also that such emotional factors are hard to dislodge. Indeed Alan seemed to be suggesting that on the whole the rational brain serves to offer post-hoc justification for the original emotional response. The implications of this for understanding the dynamics of encounter, and the role that emotion plays in encounter are fairly evident, but no less significant for that.

The other session I’d like to focus on was one introduced by Jim Moser of Dundas & Wilson, and led by Antony Psaila and Tor Clark from Steps Drama. Steps use improvisation and interactive drama (based on a model we later learned was called ‘forum theatre’) to explore conflict in organizations. Starting from a basic brief they improvised two interactions – one between a lecturer and a student upset by a mark she had obtained in a group assignment, and the other between a law firm partner and senior associate over the latter’s exclusion from a project team. In both scenarios our role was to observe, discuss, and provide the actors with advice on what to do next, and then watch the consequences of our advice unfold. There were some definite ‘there but for the grace of god…’ moments! What differentiated it from more conventional role play was that the actors stayed in role pretty much throughout, which was more engaging and I think gave us a much greater sense of being in the moment with the characters. The level of debate and discussion these exercises generated in our group was clear testament to the power of the technique. It also showed what could be done by skilled actor-facilitators who had really honed their skills of attention and had created scenarios that avoided easy, two dimensional (good/bad) categorization of their character’s motivations. Great stuff!

The problem of moral leadership

I’ve been meaning to write for weeks on issues of access to the profession that came up at both ALT and SLSA, but that has rather got pushed to one side by some very day to day concerns, but also some larger niggling thoughts, arising out of the the current economic crisis, so I’m going to park access for now and talk about the stuff that is really starting to bother/interest me.

One of the things that unites commentary about both the banking crisis and the recent scandal over MPs expenses is the tendency to see these phenomena as a failure of regulation. In other words the argument, at its simplest, seems to be that neither of these groups of people would have behaved the way they did, if the rules hadn’t permitted it. I think that this is both absolutely spot on, and at the same time utterly banal and wrong! The fact that, at the same time, people outside Parliament have been so enraged by the perceived greed and venality of the expenses systems, and that MPs themselves saw nothing wrong in that same system perfectly illustrates the power of a collective ethos and the capacity for ‘groupthink’ within any social group or institution. In an environment where everbody else is doing the same thing, these issues often simply do not occur like moral choices, or any kind of ‘big decision’ about which one needs to stop and think. If we are honest about it, these are simply high-profile instances of a very common human phenomenon. These are not particularly bad people, or necessarily bad institutions (though some may be). David Luban writes extremely well about the plasticity of conscience and the power of social pressure in the context of the corporate scandals of the early noughties in a collection of essays that are worth re-reading in the present context (see Deborah Rhode (ed) Moral Leadership: The Theory and Practice of Power, Judgment and Policy , Jossey-Bass, 2006). I think this helps us to understand what has been going on, though not in order to condone it. As Luban observes, understanding moral failure does not mean we have to forgive it. I’m not really saying let s/he who has never sought to exploit the rules (whether it be around tax avoidance, benefit claims, business expenses, or any other perks) to their own financial advantage cast the first stone. I am saying that our psychology makes us very, very, good at persuading ourselves that we are not really being bad. In sum, our moral compasses are less than reliable guides, and no system of external regulation is ever going to solve this problem. You can keep playing by the rules, because that may enable you also to keep playing with the rules in an endless game of creative compliance that is geared to minimize our own cognitive dissonance: that is why the playing by the rules defence is so banal and ultimately wrong.

This brings us, I guess, to the crux of the problem. If rules, though useful to a degree, are no adequate substitute for a good moral compass, and moral compasses are also potentially quite unreliable guides, what do we need to do? This is a big question. Certainly we need to revisit the rules, and we need to do so in a way that offers greater transparency into how important social institutions operate – whether they be banks or legislatures or other key social and economic institutions. Where rules are written and enforced behind closed doors, there is surely a greater risk that those rules will lack social legitimacy and adequate connection to standards of common morality. We also need a greater commitment to moral leadership. We need more not less moral accountability, and somehow to re-establish the idea that the buck stops where real, personal, moral responsibility lies. Let’s spell it out: moral responsibility means taking responsibility for one’s failure to see one’s own moral failings; following a set of rules that are of dubious moral legitimacy is no defence, even if that wasn’t obvious at the time.

Of course the other thing that is troubling here is that many of those we are being highly critical of are the products of supposedly ‘good’ schools and our leading universities. What is their role in developing – or failing to develop – this moral capacity for leadership?