A place for ethics in the legal syllabus?

Lord Justice Potter, Chair of the Legal Services Consultative Panel

May I start by saying how pleased and honoured I am at having been invited to deliver the opening address at this conference.

Of course, I am aware that my invitation owes less (indeed it owes nothing) to my experience, qualification or reputation as a teacher of law than to my position as chairman of the Advisory Panel on Legal Services, which carries with it the task of chairing the Lord Chancellor's Standing Conference on Legal Education. The Panel is, of course, the successor to ACLEC as from its abolition on 1 January 2000 and, as such, it has a statutory function to give advice in relation to the education and training of providers of legal services.

However, I can truthfully assert that by both heredity and environment I am not a total stranger to the world of academic law. My father was a well known legal historian and real property lawyer who founded the faculty of laws at King's College London and was its Professor and Dean until his premature death in 1952. Indeed my first introduction to a legal audience, following an unhappy incident with a catapult, was by way of example in one of my father's lectures upon the tortious liability of a parent for the actions of his child.

I also remember that at one point in my childhood my behaviour deteriorated to such a degree that my father felt constrained to tell me that if I did not pull my socks up I would end up sleeping on benches. I do not think that he was predicting a judicial career for me at the time.

Later, I did enjoy - and I mean enjoy - a period of several years as a young barrister going back to my old university to give weekend tutorials, principally in criminal law. I must confess that the content of my course owed as much to anecdote based on my own early experiences as to deep research. However, I had a number of pupils who have subsequently achieved legal distinction.

One of those pupils was Mary Arden, subsequently the Chair of the Law Commission and now Lady Justice Arden. She was kind enough recently to inform me that it was the quality of my criminal law tutorials which made her resolve to go to the Chancery Bar, so I can at least claim some credit for her subsequent legal success.

Much later, as a senior barrister, I began to take an active interest in legal education in a professional context as Vice-Chairman of the Council of Legal Education and as a member of the Marre Committee in the early 1980s. That committee, well in advance of ACLEC, reported under terms of reference which required it to examine the extent to which the services offered by the legal profession met the needs of the public for legal services, how such services could be made more readily available to meet such needs, and, where changes in structure, practice and education might be in the public interest, to make recommendations to the professional bodies on such changes.

Viewed in retrospect, the recommendations of the Marre Committee, established as it was as a joint committee of the Bar Council and Law Society, albeit with a lay chair, were scarcely groundbreaking. They now appear to have amounted to little more than adjustments to an accepted status quo and the settlement of parochial disputes between the two sides of the profession, then locked in combat over rights of audience, rather than recognising any need for a fundamental review or re-thinking of the methods by which the needs of the public for legal services might be improved.

So far as legal education was concerned, the Committee in general terms encouraged the development of common legal education and vocational training and, in the course of doing so, expressed concern about perceived inadequacies in the academic stage experience of students entering the vocational stage. However, the need identified was for better development of students' intellectual and analytical powers, communication skills and abilities in legal research. In those respects it made no detailed proposals and, in particular, it made no suggestion as to the need for any early grounding in ethics. Indeed it made no criticism of the adequacy of ethical training at the vocational stage, albeit such training was largely non-existent at that time.

Once on the bench, my interest in legal education was that of a spectator rather than a participant, save that I was engaged in various activities of the Judicial Studies Board (JSB) in relation to training of judges (in particular in relation to so called 'human awareness') and in advocacy training for young barristers in my own Inn of Court. However, as a judge at first instance and, in particular, as a Presiding Judge of the Northern Circuit, I became closely concerned with problems and complaints arising in relation to all aspects of the judicial process and the court service, including problems at the interface between the police, welfare and prison services, and the court administration.

It was in that role, as well as in the JSB and the practical training of young barristers, that I became increasingly conscious of how far a healthy justice system depends upon the ethical assumptions and behaviour of those who participate in it, particularly in the context of the adversarial system of justice with which we are all familiar and which is productive of enormous pressure and temptation to cut corners upon the practitioners and support services at work within it.

Upon the assumption that justice, fairness and a proper balancing of the diverse interests involved constitute both the aim and the ingredients of the system, I concluded how important it is that there should be in existence effective codes of conduct governing the behaviour of the various actors within the system, whether in the form of guidelines or of rules backed by disciplinary sanctions, which spell out clearly the nature and limits of appropriate behaviour and best practice in the areas most frequently productive of dispute or abuse.

However, situation-specific rules are not alone sufficient. Any well drafted code should also set out a framework of core values and aspirations to be borne in mind at all times, and which are available both to regulate in situations or dilemmas which are not specifically dealt with, and to guide in the application of provisos which allow discretionary relaxation of the individual black letter rules in particular cases. (I am pleased to note that the Law Society is at present undertaking a complete review and revision of its professional code with this in mind).

The operation of the justice system is archetypally an activity where important decisions are taken and responsibilities exercised by persons with widely varying approaches and castes of thought in areas which fundamentally affect the lives and interests of the individuals involved. But they also affect the interests of society at large in the name and for the protection of which the decision maker acts. In those circumstances, and where the two sets of interests frequently conflict, it is of great importance that the rules make clear so far as possible the ethos which underlies and informs them.

In the context of civil proceedings, this was particularly borne in upon me in my work as a commercial judge, when I was struck by the significant number of cases in which it seemed clear that it was the intransigence of the lawyers as between each other and their desire to score points on the correspondence rather than any unwillingness on the part of the client which stood in the way of settlement prior to trial, or indeed which had led to the issue of proceedings in the first place.

But, so far as the conduct of lawyers generally is concerned, the matter goes far wider than that. Contentious business and dispute resolution within the justice system are but a limited part of the lawyer's activities. The spread of the lawyer's activity in the fields of advice, representation and regulation is nowadays so diverse, and the functioning of a healthy and just society so dependent upon those activities, that there is an increasing need for lawyers with an instinctively ethical approach to their task and a feel for the proper balance to be struck, when advising in any given situation, between pursuit of the unchecked or short term interests of the client and the effect of such action upon others and upon society at large.

Thus, when I was appointed Chairman of ACLEC in early 1998, two years after the publication of its ill fated First report on legal education and training, I found myself very much in sympathy with much of its content.

I do not intend to remind you of its detailed recommendations, which did not find favour at the time, in particular in relation to the introduction of a new professional course, the Licentiate of Professional Legal Studies, designed to tutor a student in practical legal knowledge and skills after he had completed his qualifying law degree or diploma in law.

I would only observe that the concept of a broad law qualification short of the professional qualification of 'Barrister' and 'Solicitor' needs renewed and sympathetic consideration, in the light of the developing need for provision of legal services at the 'lower end' of the market, particularly in the face of the drastic reduction in the availability of legal aid. The panacea proposed and currently being developed, namely the provision of advice and representation by an expanded Community Legal Service and the employment of public service lawyers, would be greatly assisted by the development of a law degree with a content appropriate for recognition as an immediate qualification as an advisor or representative.

Those parts of the ACLEC report which rang a particular bell with me, and which should in my view now be taken up both by the profession and the universities, are those which emphasise the need to provide prior to the point of initial qualification a greater depth of learning, not only in areas of basic legal knowledge and generic skills, but in the development of 'common professional values'.

As the report puts it at paragraph 1.19 under the heading The ethical challenge:

“ As the organisations in which law is practised become larger and more complex, as competition and stability in the market for legal services increases, and as many legal practitioners experience a growing sense of insecurity, there are real dangers that professional standards will be threatened unless counter-balancing steps are taken to reinforce ethical values&no amount of external regulation of professional practice will serve as an adequate substitute for the personal and professional values and standards that lawyers should internalise in the earliest stages of their education and training. Teaching in ethical values should include more than familiarisation with professional codes of conduct and the machinery for enforcing them. Nor is it clear that the present approach, whereby professional ethics are taught pervasively across a wide range of legal subjects and topics, is sufficient to meet the complex ethical issues that lawyers are likely to face in modern practice&students must be made aware of the values that legal solutions carry, and of the ethical and humanitarian dimensions of law as an instrument which affects the quality of life. ”

“ The ethical challenge goes beyond the obligations that solicitors and barristers owe to their particular clients. The legal profession also carries wider social and political obligations to society as a whole. If the profession is to fulfil its role in protecting the rights of minorities within society and promoting the welfare of the disadvantaged, it is vital that its own composition reflects the social and cultural diversity of today's society. ”

At paragraph 2.4, in its general statement of what legal education and training should aim to achieve, having first listed 'intellectual integrity and independence of mind' and 'core knowledge', the report turns to the headings 'contextual knowledge', which it defines as "an appreciation of the law's social, economic, political, philosophical, moral and cultural context" and to 'legal values' which it states

“ ...means a commitment to the rule of law, justice, fairness and high ethical standards, to acquiring and improving professional skills, to representing clients without fear or favour, to promoting quality of opportunity and to ensuring that adequate legal services are provided to those who cannot afford to pay for them. ”

With all that I agree.

The education of lawyers for eventual practice is of course a continuum. For years it has consisted, and in one way or another will continue to consist of:

1. the academic law degree stage
2. the professional or vocational stage
3. the early years of practice during which 'mentoring' (and in the best firms and chambers, a process of osmosis) ensures 'reflective lawyering' and the application of ethical standards in practice

However, as to the last, for reasons which there is neither time nor necessity to canvass here, the existence and benefits of adequate and conscientious mentoring cannot be taken for granted, and the Bar Council and the Law Society themselves recognise the need in principle for a degree of ethical training to be included at some stage of the educational curriculum. However, in their case that emphasis has been, and still is, upon the ethics of the lawyer in professional practice and, in particular, the observation by him of suitably drawn codes of conduct of which knowledge is expected. They have not so far seen any need for education in the ethics of law itself. Insofar as ethics are considered to be a proper matter for study, they are left to study on a voluntary basis, usually under the heading 'jurisprudence' in the course of a law degree, remaining firmly outside the range of the core subjects required by the professional bodies before a student proceeds to vocational training.

However, while recognition of a dichotomy between the ethics of law and the ethics of lawyers may be expedient for the professional bodies who are concerned with regulating the conduct of lawyers in practice, it is not one which in the view of ACLEC, and certainly in my view, should be observed or preserved for the purposes of an academic law degree. There is considerable 'overlap' between the two, and the ethical lawyer, the lawyer whose attitude and skills we wish to encourage should be acquainted with the essentials of both. As Professor Bob Hepple made clear in his article The renewal of the liberal law degree 55 CLJ [1996] 470:

“ What is common to Blackstone, Amos and Maitland (and to Dicey in his celebrated inaugural as Vinerian Professor in 1883) is that they draw no distinction between a 'liberal' or 'academic' legal education and a 'professional' or 'vocational' one. As Professor Khan Freund commented in 1966 (in relation to Blackstone and Dicey): "[there is] not a trace of a thought or superstition that only that which is of practical importance is worthy to be taught or of the perhaps even more pernicious superstition that the less a thing has to do with practice the better it is for the so called training of the mind". ”

If it was ever in doubt before, the advent of the Human Rights Act 1998 means that the role of the lawyer can no longer be regarded as simply giving advice to his client upon the letter of the law, whether in the form of statute, or regulations or established common law principle.

As Lord Woolf recently stated in his Upjohn lecture to the Inns of Court School of Law delivered on 14 June 2000:

“ [The lawyer's] task is the making of value judgments between conflicting fundamental rights and values. In almost any situation, before you can ascertain the impact of the Act and Convention, a complex value judgment has to be made. The facts of a dispute have to be carefully assessed against the conflicting social and human values before the law can be ascertained. This is a task which is fundamentally different to that involved in seeking to make sense of badly drafted contracts or legislation. ”

And, as Professor Julian Webb has rightly observed:

“ The Human Rights Act 1998 (HRA) inter alia, raises substantive and, at the same time, ethical questions about the criminal trial process, about the content and assumptions of our professional codes of conduct, and, even more fundamentally, about the appropriate forms and content of adjudication and argumentation; as Lord Steyn has acknowledged, the HRA will oblige the courts to take into account more morally and philosophically grounded forms of argumentation than our rather pragmatic system is used to. Many of these developments raise issues which go well beyond the conduct matters which academics can tidy away to the hinterland of vocational and continuing education; rather they beg quite fundamental questions about the role of law and lawyer in the 21st Century. ”

(See Law Teacher 1999 vol 33 p285)

I agree. There is and will continue to be an increasing need of ethical lawyers concerned with the ethics of law, and the proper balance between human rights and the more general interests of society and state, as well as with the ethics of lawyers, in the sense of compliance with the rules of professional conduct. Whether or not in direct response to requests received from the professional bodies of the legal profession, I consider it is the responsibility of a university law degree to require its students to consider the role of law in society both as an instrument of regulation and of change (ie its political and social role) and as the means by which 'justice' is delivered to the citizenry at large. How far does 'justice according to law' achieve its aim? What are the tensions which exist between individual and social justice and what should be the priorities of the law in resolving them? In this connection, it seems to me essential to engage in at least a broad consideration of the legal procedures for dispute resolution and the duties of the lawyer within those procedures. In doing so, it will be essential to consider the nature of the merits and demerits of our adversarial system in relation to both the criminal and civil process.

These are questions with which all thinking lawyers should concern themselves at some stage of their career, and the initial stage of the law degree is plainly the appropriate stage to lay the foundation which will underpin and inform the conduct of the lawyer's eventual practice. Further, the vocational training stage, crammed as it is with the teaching of narrower professional skills, will be unlikely to direct the student beyond knowledge of appropriate sections of the code of conduct.

As to that aspect, I do not think that study of the codes of conduct, or at least the principles underlying them, should be left entirely to the vocational training stage. The codes are, after all, the most obviously handy source material from which to glean the currently recognised professional ethics of the lawyers practising under their terms, and are replete with situations and examples which may usefully be developed and critically discussed with a view to combating the black letterism with which lawyers seek to console and protect themselves in the face of attack or critical interrogation as to their moral position when advising or acting for a client whose instructions are of dubious legality or morality.

I am not qualified and do not seek to make detailed suggestions as to the particular content of the legal ethics element to be developed and taught, whether by the pervasive method, or by introduction of a specific module, but I associate myself entirely with the view expressed by Professor Hutchinson of Osgoode Hall that:

“ There are three basic steps that must be taken; teaching ethics in such a way that it encourages students to treat its study as an active and continuing challenge rather than a passive and finite undertaking, teaching ethics in such a way that the method of instruction obliges students to deal with ethical problems in an engaged and participatory session and teaching ethics in such a way that ensures that the process of the product of ethical reasoning is connected to the messy socio-political context in which ethical controversies and their proposed solutions arise. ”

Having pleaded my own lack of qualification to advise in the detailed context of the ethics element, I can say that I have been deeply interested in the illuminating articles contained in vol 33 no 3 of the Law Teacher (1999), largely devoted to ethics in legal education, in which a number of ideas are developed by academics well known in the field. One of those is Professor Webb, who has recently produced, in joint authorship with Donald Nicolson, a work entitled Professional legal ethics: critical interrogations, which provides an in depth analysis and sustained critique of the approach to ethics of the English legal profession. That work, together with that of Boon and Levin in The ethics and the conduct of lawyers, with its clear exposition of the strains upon the modern profession in the face of the wide ranging changes in the economic and regulatory landscape over the last few years, clearly demonstrates the need for the study and emphasis of the ethical dimension to thelawyer's work in the face of the increased (principally economic) pressures which for various reasons according to the nature of his practice, may encourage a lawyer in unethical behaviour, whether in his clients' interests or at his clients' expense.

In the course of my contact with the law teaching profession as the ex officio Chairman of the Lord Chancellor's Standing Conference on Legal Education at which the Bar Council and Law Society are represented, I have become all too well aware of the tensions which exist between the suppliers of first law degree courses and the professions over the proper content of a general law degree, apart from the long established and accepted 'core' subjects. The response of university law teachers to the representations of the professional bodies has been largely co-operative, recognising as it must that over 50% of law graduates are bent on a career in the professions and therefore that the syllabus should be largely shaped with that in mind. This has resulted in an agreed Joint statement on qualifying law degrees (PDF file), which has been largely implemented. At the same time, law teachers have rightly fought the corner of the liberal law degree, praying in aid also the views stated by ACLEC from which I have already quoted.

In my view they are right to do so. The professional bodies, unsurprisingly, take the view that they should look after their own who, in this context, are the large body of independent practitioners. Their input has been devoted to speeding up the qualification process and encouraging the development of specific skills likely to be utilised in the course of everyday practice, and their proposals have not referred to any requirement for a legal ethics element within the first degree course.

Nonetheless, the inclusion of such an element should in my view be considered by those responsible for course content as a matter of priority. I say that not only for the reasons to which I have already referred. The need for ethical lawyers to preserve ethical standards in the operation of the judicial system, as well as in the wider financial and commercial world in which lawyers (independent and employed) advise and act for their clients, does not only exist as a social need, but in order to protect the interests and reputation of the legal profession itself. As the Lord Chancellor stated in his address to the Law Society Conference on 18 October 1997:

“ I doubt if anyone in this hall would seriously argue that the legal profession in the recent years has done anything other than fall lower and lower in public estimation...I want...to preside over a legal system that is so highly respected that lawyers can begin to compete with teachers and doctors and nurses in what they put into society. ”

That is an aspect which the professions ignore at their peril. It should give cause for them to welcome, even if not to require, the introduction of an ethical content to the ordinary law degree.

How that content should be introduced and taught has been the subject of a good deal of recent literature, and I would commend to this conference in this respect not only the sources I have already identified but also the papers of Richard O'Dair (Recent developments in the teaching of legal ethics: a UK perspective - chapter 8 of Ethical challenges to legal education and conduct, edited by Kim Economides, Hart Publishing 1998) and Ethics by the pervasive method: the case for contract (1997) 17 Legal Studies 305.

Practical difficulties will loom large in the re-shaping of legal courses to incorporate the ethical element, particularly in the light of the limitation upon available resources. However, as O'Dair has pointed out, it is possible to pursue the teaching of ethics by the pervasive method, ie by addressing ethical questions and dilemmas as they arise in the substantive courses taught and, in particular, within the parameters of a 'law in society' module, whether self standing or as an adaptation of modules in English legal system and/or jurisprudence. I have no doubt that, if there is a will within the academic community (as there plainly now is), there can be a way, even within the confines of a three year course.

Whether or not the incorporation of a broad ethics element or a specific ethics module within the degree course will at some time in the future be recommended or imposed, I have no doubt that it is a step which, if taken now, will improve the value and quality of the decisions and advice of future generations of lawyers in whatever capacity or sphere of practice they may be engaged.