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Rules and Roles: Casting Off Legal Education’s Moral Blinders for an Approach that Encourages Moral Development

  • Donald E. Buckingham

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As the breadth and complexity of law increases, the focus of lawyers seems to narrow. Law is increasingly seen by lawyers and the public alike as a “business” rather than a “profession” with lawyers simply providers of legal services. The client is “job one”, with the nebulous concept of “the public interest” somewhere further down in the list of priorities and preoccupations of individual lawyers. Clients are, after all, the ones who pay, and it is their interests that must be served.

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I would like to thank Janet Epp Buckingham, Mike Cormier, and Margaret Brockett for their insights into themes explored in this paper. Also, special thanks should be extended to my research assistants, Jacqueline Juselius, Sheila Jacques, Catherine Eckenswiller, Seanna-Lin Brodie-Keys and Heather Heavin. Their assistance was made possible through financial contributions from the Westminster Institute for Ethics and Human Values, the Law Foundation of Ontario, the Social Sciences and Humanities Research Council of Canada, and the College of Law Endowment Fund at the University of Saskatchewan.

1. Tur, R.An Introduction to Lawyers’ Ethics” (1992) 10 J. of Professional Legal Ed. 217 at 231.

2. Thielens, W.The Influence of the Law School Experience on the Professional Ethics of Law Students” (1969) 21 J. of Legal Ed. 587; Carlin, J.What Law Schools Can Do About Professional Responsibility” (1971) 4 Connecticut L. Rev. 459; Bok, D.Can Ethics Be Taught?” (1976) Change Magazine 26; Willging, T. & Dunn,, T.The Moral Development of the Law Student: Theory and Data on Legal Education” (1981) 31 J. of Legal Ed. 306; Esau, A.Teaching Professional Ethics and Responsibility at Law School: What, How and Why?” in Legal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987) 308; Abramson, E.Puncturing the Myth of the Moral Intractability of Law Students: The Suggestiveness of the Work of Psychologist Lawrence Kohlberg for Ethical Training in Legal Education” (1993) 7 Notre Dame J. of Law, Ethics & Public Policy 223.

3. Esau, supra note 2 at 352.

4. Willging & Dunn, supra note 2; Thielens, supra note 2.

5. Willging & Dunn, supra note 2 at 355.

6. Esau, supra note 2 at 353.

7. Dickinson, G.Moral Development Theory and Clinical Legal Education: The Development of Professional Identity” (1984) 22 UWO L. Rev. 183.

8. E. Abramson, supra note 2.

9. Kohlberg, L. The Philosophy of Moral Development (Vol.1) (San Francisco: Harper & Row, 1981); Kohlberg, L. The Psychology of Moral Development (Vol.2) (San Francisco: Harper & Row, 1984); Kohlberg, L.A current statement on some theoretical issues” in Modgil, S. & Modgil, C. eds, Lawrence Kohlberg: Consensus and Controversy (Philadelphia: The Falmer Press, 1986) at 485.

10. Dickinson, supra note 7 at 197.

11. Pipkin, R.Law School Instruction in Professional Responsibility: A Curricular Paradox” (1979) A.B.F. Rest. J. 247 at 275.

12. Rathjen, G.The Impact of Legal Education on the Beliefs, Attitudes and Values of Law Students” (1976) 44 Tenn. L. Rev. 85. However, a later study seems to dispute this finding: see Erlanger, H. & Klegon, D.Socialization Effects of Professional School” (1978) 13 L. and Soc. Rev.

13. Cotter, B. Professional Responsibility Instruction in Canada: A Coordinated Curriculum for Legal Education (Montreal: Conceptcom 1992) at 214.

14. Ibid, at 2–20.

15. Esau, supra note 2 at 355–56.

16. Rest, J. & Narváez, D. eds, Moral Development in the Professions: Psychology and Applied Ethics (Hillsdale, NJ: Lawrence Erlbaum Associates, 1994).

17. Rest, J. Development in Judging Moral Issues, Minneapolis: University of Minnesota Press, 1979); Rest, J. Moral Development: Advances in Research and Theory (New York: Praeger Press, 1986); Rest, J.Why does college promote development in moral judgment?”(1988) 17 J. of Moral Ed. 183.

18. Supra note 9.

19. Supra note 16. Empirical studies were conducted in professional schools of education, journalism, nursing, psychology, accounting, veterinary sciences and dentistry.

20. For further reference to the codes of professional conduct in Canada, see The Federation of Law Societies of Canada’s database on QUICKLAW. This Database, referred to as the Law Societies’ Act and Regulations Database, can be accessed through QUICKLAW with the code LSAR.

21. Esau, supra note 2 at 317.

22. The concept of what it means to be a good lawyer was the central theme of what has become one of the seminal works in American legal ethics scholarship. See Luban, D. ed., The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Totowa, NJ: Rowman & Allanheld, 1983).

23. Freedman, M.Where the Bodies are Buried: The Adversary System and the Obligation of Confidentiality”, Lawyers’ Ethics in an Adversary System (Indianapolis, IN: Bobbs-Merrill, 1975) at 1; Fried, C.The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale L. J. 1060; Luban, D.The Adversary System Excuse” in Luban, supra note 22.

24. Davis, M. & Elliston, F.Part III—The Adversary System—Introduction” in Davis, M. & Elliston, F. eds, Ethics and the Legal Profession (Buffalo, NY: Prometheus Books, 1986) at 186.

25. Freedman, supra note 23 at 1.

26. Fried, supra note 23 at 1065.

27. Luban, supra note 22 at 111, argues that the adversarial system is pragmatically justified and thus requires participants to play by its rules to promote its ends. However, beyond a certain point, the lawyer can no longer rely on the system for ethical justification of her actions, but instead becomes responsible for the ethical consequences of her actions. Other authors who decry the use of the adversarial role as the foundation of legal ethics include: > Wasserstrom, R.Lawyers as Professionals: Some Moral Issues” (1975) 5 Human Rights 1; Postema, G.MoralResponsibility in Professional Ethics” (1980) 55 N.Y.U. L. Rev. 63; and Shaffer, T. On Being a Christian and a Lawyer (Provo, UT: Brigham Young University Press, 1981).

28. I have borrowed this term from Solomon, H.The search for an alternative to learning ethics by osmosis”, The [Toronto] Globe and Mail, May 25, 1993, B19.

29. Esau, supra note 2 at 354–355.

30. Kennedy, D.Legal Education as Training for Hierarchy” in Kairys, D. ed., The Politics of Law (New York: Pantheon Books, 1982) 38 at 50.

31. Ibid, at 51.

32. Self, D. Olivarez, M. & Baldwin, D. Jr., “Moral Reasoning in Veterinary Medicine” in supra note 16 at 166.

33. Ibid, at 166.

34. L. Sieg quoting Hideo Takeichi, a professor at Sophia University in Tokyo, “Japanese educators afraid schools creating monsters”, The [Toronto] Globe and Mail, May 25, 1995) at A17.

35. Kohlberg’s theory has been called the socialization view of moral development. The six stages as recounted by Rest and Narváez, supra note 16 at 5 are: Stage 1-The morality of obedience: Do what you’re told; Stage 2-The morality of instrumental egoism and simple exchange: Let’s make a deal; Stage 3-The morality of interpersonal concordance: Be considerate, nice and kind: you’ll make friends; Stage 4-The morality of law and duty to the social order: Everyone in society is obligated to and protected by the law; Stage 5-The morality of consensus-building procedures: You are obligated by the arrangements that are agreed to by due process procedures; and Stage 6-The morality of nonarbitrary social cooperation: Morality is defined by how rational and impartial people would ideally organize cooperation. Ponemon and Gabhart, in their article “Ethical Reasoning Research in the Accounting and Auditing Professions”, supra note 16 at 104 group Kohlberg’s stages into three groups: preconventional level (Kohlberg’s stages 1 and 2) where the individual makes the decision to do what is right to avoid punishment or to serve one’s own interests such that preconventional persons are not aware of differences among individuals; conventional level (Kohlberg’s stages 3 and 4) where the individual has a need to be a good person and desires to maintain rules and authority that support stereotypical good behaviour so as not to breakdown the system; and the postconventional level (Kohlberg’s stages 5 and 6) where the individual follows self-chosen ethical principles. Laws or social arrangements are valid because they rest on such principles, but when laws or rules violate these principles, someone who has attained this level of moral development, acts in accordance with the principle rather than abiding by the rule. For a graphic description of Kohlberg’s theory of moral development, see also Dickinson, supra note 7 at 186.

36. Gilligan, C. In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982).

37. Ibid, at 62.

38. Bebeau, M. & Brabeck, M.Integrating Care and Justice Issues in Professional Moral Education: A Gender Perspective” (1987) 16 J. of Moral Ed. 189 at 199.

39. Supra note 16.

40. Ibid, at 14.

41. Component 1: Moral Sensitivity—“It involves imaginatively constructing possible scenarios, and knowing cause-consequence chains of events in the real world; it involves empathy and roletaking skills.” Ibid, at 23.

42. Component II: Moral Judgment—“Once the person is aware of possible lines of action and how people would be affected by each line of action (Component 1), then Component II judges which line of action is more morally justifiable.” Ibid, at 23-24.

43. Component III: Moral Motivation—“Component III has to do with the importance given to moral values in competition with other values. Deficiencies in Component III occur when a person is not sufficiently motivated to put moral values higher than other values—when other values such as self-actualization or protecting one’s organization replace concerns for doing what is right.” Ibid, at 24.

44. Component IV: Moral Character—“This component involves ego strength, perseverance, backbone, toughness, strength of conviction, and courage. A person may be morally sensitive, may make good moral judgments, and may place high priority on moral values, but if the person wilts under pressure, is easily distracted or discouraged, is a wimp and weak-willed, then moral failure occurs because of deficiency in Component IV (weak character). Ibid, at 24.

45. Bok, supra note 2 at 28.

46. For example, Rule One of the Law Society of Upper Canada Professional Conduct Handbook (Toronto: The Law Society of Upper Canada, 1992) reads: “The lawyer must discharge with integrity all duties owed to clients, the court, the public and other members of the profession.”

47. Loder, R.Tighter Rules of Professional Conduct: Saltwater for Thirst” (1987–88) I Georgetown J. of Legal Ethics 311 at 312.

48. Abel, R.Why Does the ABA Promulgate Ethical Rules?” (1981) 59 Texas L. Rev. 639 at 653.

49 Rule Four of the Law Society of Upper Canada’s Handbook of Professional Conduct, supra note 46 reads: “The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”

50 Grant, S.Sex, Lies and Legal Ethics: Reflections on the Sources of Our Virtue” (1990) 24 Gazette 103. Grant suggests that lawyers fill many roles in their professional life including those of advocate and counsellor, facilitator or [sic] human collaboration, and public servant. Ibid, at 112.

51 Kennedy, supra note 30.

52 Take, for instance, questionable billing practices. Techniques such as double-billing, premium billing and efficiency billing appear to be widespread in Canada and the United States, even though such practices are considered unethical. See, for example, a recent ruling of the American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 93–379, “Billing For Professional Fees, Disbursements and Other Expenses” (Chicago: American Bar Association, 1993).

53 Gutmann, A.Can Virtue Be Taught to Lawyers?” (1993) 45 Stanford L. Rev. 1759; Shaffer, T.The Profession as Moral Teacher” (1986) 18 St. Mary’s L. J. 195 at 242. For a summary of the legal literature on the subject of whether character can be taught see Moliterno, J.An Analysis of Ethips Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere” (1991) 60 Cincinnati L. Rev. 83 at 94. For a discussion of the topic generally, see Darling Smith, B. ed., Can Virtue Be Taught? (South Bend, IN: University of Notre Dame Press, 1993).

54 Monk Kidd, S. When the Heart Waits (New York: Harper & Row, 1990) at 8991.

55 Sandalow, T.The Moral Responsibility of Law Schools” (1984) 34 J. of Legal Ed. 163 at 167–68.

56 Supra note 11 at 275.

57 Redlich, N.Law Schools as Institutional Teachers of Professional Responsibility” (1984) 34 J. of Legal Ed. 215; and Cotter, supra note 13 at 3–5.

58 Supra note 13 at 3-19.

59 Ackerman, R.Law Schools and Professional Responsibility: A Task for All Seasons” (1984) 88 Dickinson L. Rev. 202 at 212; and Cotter, supra note 13 at 4–4.

60 I am indebted to Duckett, L. & Ryden, M.Education for Ethical Nursing Practice” in Moral Development in the Professions: Psychology and Applied Ethics, supra note 16 at 5657 for the functions of “advisor”, “facilitator” and “reinforcer”.

61 Esau, supra note 2 at 356.

62 Some such programs have already been developed for professional schools. See Bebeau, M.Designing an Outcome-based Ethics Curriculum for Professional Education: strategies and evidence of effectiveness” (1993) 22 J. of Moral Ed. 313; Brockett, M.Ethics Forum Presentation to the Canadian Association of Occupational Therapists” (unpublished 1995: on file with author).

Rules and Roles: Casting Off Legal Education’s Moral Blinders for an Approach that Encourages Moral Development

  • Donald E. Buckingham

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