While considerable thought and effort has been put into exploring and fixing the ethical rights and professional responsibilities of private lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical privileges. The central thrust of the article is the effort to appreciate legal ethics and professional responsibility as part of a larger democratic understanding of law and justice.

The traditional narrative of the legal profession has run its course. Lawyers are looking for ethically sensitive ways to practice law that “assume greater responsibility for the welfare of parties other than clients” and that increasingly amount “to a plus for this society and for the world of our children.” Lawyers are also seeking ways to practice law that allow them to get home at night and on weekends, see their families, work full or part-time, practice in diverse and “alternative” settings, and generally pursue a meaningful career in the law rather than necessarily a total life in the law. Similarly, law students are hoping not to be asked to make a “pact with the Devil” as the cost of becoming a lawyer, and are instead looking to find areas in the law that fit with their personal, political, and economic preferences. An increasing number of legal academics are teaching, researching, and writing about progressive changes to the way we view the role and purpose of lawyering. Law faculties are actively reforming their programs and creating centres and initiatives designed to make space for innovative ethics offerings and public interest programs. Law societies and other regulatory bodies are slowly chipping away at some of the time-honoured shields of ethically suspect client behaviour, while at the same time facing demands for increased accountability. The bench and the bar are taking an active interest in addressing a perceived growing lack of professionalism within the practice. The public is increasingly skeptical of the distinction that continues to be drawn between legal ethics and “ordinary standards of moral conduct.” Finally, clients are not only expecting lawyers to actively canvass methods of alternative dispute resolution—the alternative to the adversarial and costly litigation process—but they are also demanding evidence of general sustainable professional practices from their legal counsel.

This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the area. It integrates these developments within broader changes in legal education that set the stage for the continued expansion of Canadian legal ethics in the twenty-first century.

“Eye-opening,” “disheartening,” and “inspiring” are some of the words used by law students who met in 2008–2009 to discuss their mosaic of experience in the field doing public interest work. These students had returned from placements under the first mandatory public interest requirement to be introduced in a Canadian law school (the Osgoode Public Interest Requirement, OPIR). OPIR arose from questions about the relationship between what is learned in law school and what is required to be a professional. Academics have challenged each other to do more to instill an “ethos of professionalism” during law school. Others have suggested that law students who do not receive exposure to the world outside the walls of the law school carry an “idealized conception of the profession” and are often unaware of the many practice contexts available to them. Others have warned that if ethical and professional responsibilities are not modeled and articulated for students, that teaching only the “law of lawyering” does not prepare students for becoming ethical lawyers. Teacher-educator Lee Shulman has bluntly accused law schools of “failing miserably” at connecting its lessons in how to “think like a lawyer” with how to “act like a lawyer.” For years, there have been similar concerns raised about the decline of professionalism among lawyers, both in Canada and in the U.S. A survey of Osgoode graduates revealed that students wanted more opportunities to engage with the community and to experience non-traditional forms of law practice. Osgoode Hall Law School grappled with many of these questions, and in 2007 it approved changes to the curriculum, including a new first year Ethics course (Ethical Lawyering in a Global Community, ELGC) and OPIR. In addition to the more traditional first year mandatory course load, Osgoode Hall law students must also complete ELGC, a minimum of 40 hours of public interest work and then engage in a discussion or written exercise reflecting on their experiences. These reflections are a valuable lens for seeing the profession and the administration of justice through the eyes of first and second year law students. Their experiences remind us in the profession that learning can flow in both directions.

In Germany, the possibilities of students to participate in and contribute to legal education are generally quite limited. Compared to the legal education systems in the USA and Canada, the course of studies is rather theoretical and quite anonymous. Communication between students, faculty staff and deans is rare, and classes are fairly big. As to the abstractness of the curriculum, several changes have been made to improve the situation. For example, a reform in 2003 was supposed to increase foreign language competence and provide for more specialization and practical relevance. However, the system can still (or again) be considered to be “under construction”. Many important skills are not being taught, and the awareness of the international, social and cultural contexts is largely neglected or lacking reference to the subject matter. There is an ongoing debate about further changes to the legal educational systems especially about the adoption of the Bologna Process. While some consider it inapplicable to the German system, others have already started transferring it at their university. Several federal states have meanwhile started endorsing a basic reform. However the next rulings will not be until 2011. Presently scholars, policy-makers in the field of education and economists face the challenge of devising strategies for legal education that meet the needs and interests of all “stakeholders” while being compatible with the traditional German system. Students are curious and concerned about the future of their curriculum. Their means of participation include a) passively evaluating teachings, b) actively engaging in a student parliament or self-governed student councils of a special field (so-called Fachschaften) and c) actively involving in student organizations.

In his 1935 indictment of legal education, Karl Llewellyn denounces the law schools of his time as factories pulling in immature, unprepared young men and, three years later, churning out young lawyers who are not significantly better prepared to deal with the realities of the legal profession. Llewellyn's critique touches upon every aspect of the North American legal education experience: the admission of students who lack the necessary critical research and writing skills, the rules-based “casebook” curriculum that ignores policy or practice questions and the release of graduates into the profession, without any follow-up on their experience that could be used to improve the education of the next generation of lawyers. In short, these graduates may have studied law, but they are not ready to practice law.

From the perspective of a non-American jurist, student-edited law reviews seem to be one of the most distinctive features of the United States legal education system. The development of law reviews in the United States has been particularly sustained in more recent years, with a literal proliferation of law (schools and law) reviews, both of general focus and subject-specific. With student-edited law journals making up the largest share of the legal periodical “market,” publication in highly ranked student-edited law reviews has come to acquire great significance also in relation to the law faculty selection and tenure-granting mechanism.

Explaining the work of the German Law Journal has become almost second nature to student editors; at one point in our legal careers we all have to justify to a colleague, a future employer, a parent, or potential student editor recruits the existence of a journal that, based on name alone, appears to centre on a civil law country in Europe at a North American law school that teaches the common law. Most of us have some version of this statement ready: