In 1991 Carrie Menkel-Meadow argued that even when law teachers think they are teaching law, they cannot avoid teaching legal ethics as well. “By the very act of teaching, law teachers embody lawyering and the conduct of legal professionals” and give students implicit messages about appropriate lawyering.1 What, then, do we teach when we do explicitly set out to teach legal ethics? Should we merely expect students to learn some rules and laws that apply to the conduct of legal practice? Can we really expect students to learn to be more ethical in a university course? Should we expect them to learn moral judgment? Perhaps we should be teaching them the skills of legal practice?
The depressing conclusion in much of the scholarly literature is that, even as we try to teach our students ethics, they often learn only to become even more cynical about the possibility of ethical practice.2 They are doubtful that learning ethical rules will accomplish anything; they are disengaged from ethical theory and turned off by courses that seem to focus only on critique of the profession’s failures and problems that appear to be without solutions.
Some of the most thoughtful commentators on legal ethics and the skill of teaching legal ethics argue that the key to understanding and learning legal ethics involves a process of judgment. For example, in his work William Simon argues that good lawyering is associated with complex judgment.3Legal ethics too, he argues, should be recognised as a process of complex judgment in which different factors, especially the justice outcomes of particular courses of action, are weighed up in particular contexts before a decision is made about what is “ethical.”
[P]rofessional judgment . . . ought to play a larger role than it does in professional responsibility doctrine. The fundamental injunction of this doctrine ought to be one the ABA4 Code reserves for government lawyers – to “seek justice.” And while this general norm should be fleshed out in terms of more specific ones, the specific ones should take the form, not of black letter rules that obviate judgment, but of contextual standards that engage the lawyer’s capacities for complex reflection. For example, instead of the Code’s categorical confidentiality norm, we should have a norm that mandates that the lawyer keep confidentiality “except to the extent disclosure is necessary to avert substantial injustice.”5
Similarly, Luban and Milleman argue that
the deepest source of dissatisfaction in legal ethics courses arises from the absence in the classroom of the . . . human capacity . . . [of] judgment. Moral decision making requires more than identifying the appropriate principles and values, and it requires more than analyzing arguments. Being smart has little to do with it. Rather, moral decision making involves identifying which principle is most important given the particularities of the situation, and this capacity is precisely what we mean by judgment . . . reducing judgment to rules or formulas lands us in an infinite regress of rules.6
This paper uses student evaluations and reflective journals to assess what the students learned from our approach to the compulsory legal ethics subject taught at the University of New South Wales – Law, Lawyers, and Society – and to raise for discussion what it might be reasonable for us to expect students to learn.
The learning outcomes for the course Law, Lawyers, and Societywere designed to cover a range of knowledge and skills that would be necessary for aspiring lawyers to exercise ethical judgment in legal practice. The aims were that students would:
learn to identify the rules and norms that lawyers should apply in practice;
judge what roles lawyers do play in society and the justice system, and what roles lawyers ought to play; and
develop the skills necessary for ethical practice including skills for deliberating and negotiating with colleagues about ethical and social issues, effective client communication and other client care skills, and negotiation skills.
The examination was worth 70% or 50% of the total grade for the subject (depending on the assessment options chosen; see Appendix). It was designed to prompt students to put this range of knowledge and skills together by asking students to complete three tasks in relation to a long problem scenario. The students were asked to:
(i) identify and discuss any issues of liability or ethical misconduct that may arise from the facts and come to a conclusion on what legal remedies or disciplinary action may be available by reference to case law, statute, and ethical codes and rules.
(ii) identify any significant values relevant to the practice of law that may be under threat in the fact situation, or in your answer to Question (i). Identify and discuss the way that the structure and history of the legal profession or patterns in the way lawyers relate to clients and society may have given rise to the problems arising in the fact scenario.
(iii) consider and come to a conclusion on any broader reforms to the profession, the legal system, or, a particular firm or practice of an individual that might be necessary to solve the problems you have identified in the medium to long term, or to prevent such problems arising in the future.
The intention was that in Question (i) the students would demonstrate knowledge and skills of application in relation to the content of the law of lawyering. In Questions (ii) and (iii) they would critically reflect on their rule-based analysis of the problem situation by reference to a broader set of analytical tools, skills, and experiences. In Question (ii) students would apply what they had learnt of the ethical theory and sociology of lawyering (ie “social ethics”) to the situation and to their advice. The students were encouraged to base their answers in this section on their personal beliefs, values, and experiences, if they wished. In Question (iii) students would be required to show an understanding of the skills that would be required of lawyers and law firms for ethical practice in the very specific context described in the problem scenario. They would also be required to propose and evaluate any reforms to the institutional arrangements governing the legal profession that might be necessary to prevent or correct the problems that had occurred in the scenario.
This paper discusses how we fared on each of the three learning outcomes in turn. In each case there is both a hopeful and a disappointing story to be told: there are students who are cynical about learning ethical rules, and those who feel they can improve their ability to act ethically; those who learn how to critique the practice of lawyers within a broader context, and those who see only rules; those who connect skills and everyday practice with ethical issues, and those who still see them as disjointed. I will argue, based on the evidence, that it is reasonable to hope that our students might learn something about moral judgment and ethical behaviour in the practice of law from a course with some combination of the above three learning outcomes. However, we might be able to improve their learning outcomes by more explicitly teaching them a reasoning orjudgment process that connects the application of rules about ethics, and a critical standpoint on rules and regulatory institutions, with personal values in the context of the skills required for the everyday practice of law. In other words, it is probably important for us to stop worrying so much about the content of what we teach in legal ethics courses — rules balanced against theory balanced against skills. Instead, we should focus some more attention on making explicit to our students the underlying assumptions, tools, and processes of thinking that we use, both in practice and in scholarship, to put life, theory, and rules together to make moral judgments about both specific individual practices and the practices of the whole profession.
This paper assesses what students say about what they have, in fact, learned in Law, Lawyers, and Society by reference to how we tried to achieve these learning outcomes. These included: a qualitative analysis of anonymous student evaluations filled out in the last class (107 evaluations were received from 167 enrolled students); reflective journals submitted for assessment by 114 students; and student evaluations of their experience at Kingsford Legal Centre (“KLC”) which were handed in on a separate sheet of paper with their compulsory interview report. In Appendix One I describe the course and its assessment in more detail.