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Making lawyers moral? Ethical codes and moral character

Published online by Cambridge University Press:  02 January 2018

Donald Nicolson
Donald Nicolson*
Affiliation:
The Law School, University of Strathclyde
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Abstract

This article argues that professional codes of conduct cannot perform the important task of ensuring that lawyers uphold high ethical standards. Instead, moral behaviour by lawyers requires the development of fixed behavioural attributes relevant to legal practice - what may be called a lawyer's professional moral character. At the same time, however, along with other factors, professional codes are important in that they can either contribute to or detract from the successful development of professional moral character. If so, it is argued that in order to have the best chance of assisting the character development of lawyers, codes should neither take the form of highly detailed or extremely vague, aspirational norms, but should instead guide ethical decision-making by requiring them to consider a wide range of contextual factors when resolving ethical dilemmas.

Type
Research Article
Information
Legal Studies , Volume 25 , Issue 4 , November 2005 , pp. 601 - 626
Copyright
Copyright © Society of Legal Scholars 2005

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References

1. See eg D L Rhode ‘Institutionalising Ethics’ (1994) Case W Res LR 665; D Nicolson and J Webb Professional Legal Ethics: Critical Interrogations (Oxford: Oxford University Press, 1999), esp ch 6.

2. See eg Shakespeare's Dick the Butcher in Henry VI, Part II, Act 4, Scene II: ‘The first thing we do, let's kill all the lawyers’; Jonathan Swift's description of lawyers as a ‘society of men… bred up from youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid’: Gulliver's Travels ch 5; John Stuart Mill's complaint that ‘[the lawyer] hires himself out to do injustice or frustrate justice with his tongue’ in J Bowring (ed) The Works of Jeremy Bentham (Edinburgh: William Tait, 1843) vol 7, p 479; the scorn heaped on lawyers by Dickens (Bleak House, Great Expectations) and Trollope (The Three Clerks, Phineas Redux).

3. Nicolson and Webb, above n 1, ch 4; text accompanying nn 28–33; and for more recent developments, see K Economides and J Webb ‘Editorial’ (2003) 6 Legal Ethics 127 at 129.

4. The Lord Chancellor's Advisory Committee on Legal Education and Conduct First Report on Legal Education and Training (London: ACLEC, 1996) paras 1.19-1.20; The Law Society of England and Wales Second Consultation on a New Training Framework Review for Solicitors (London: The Law Society, 2003) pp 21–22.

5. But cf R Tur ‘Profession in Crisis?’Scots Law Times, 18 August 1989, p 297, ‘An Introduction to Lawyers’ Ethics (1992) 10 Journal of Professional Legal Education 217, ‘Confidentiality and Accountability’ (1992) 1 Griffith LR 73 and ‘Accountability and Lawyers’ in R Chadwick (ed) Ethics and the Professions (Aldershot: Avebury, 1994).

6. See eg M Zander Lawyers and the Public Interest (London: Weidenfeld and Nicolson, 1968) and A Matter of Justice: The Legal System in Fermzent (London: Tauris Publishing, 1988); R Abel The Legal Profession in England & Wales (London: Basil Blackwell, 1988) and English Lawyers Between Market and State: The Politics Of Professionalism (Oxford: Oxford University Press, 2003); M Burrage ‘From a Gentlemen's to a Public Profession: Status and Politics in the History of English Solicitors’ (1996) 3 International Journal of the Legal Profession 45; A Paterson ‘Professionalism and the legal services market’ (1996) 3 International Journal of the Legal Profession 137.

7. Eg W Boulton Conduct and Etiquette at the Bar (London: Butterworths, 6th edn, 1975); T Lund A Guide to the Professional Conduct and Etiquette of Solicitors (London: The Law Society, 1960); P M K Bird and J B Weir The Law, Practice and Conduct of Solicitors (London: Waterlow Publishers, 1989); D Napley The Technique of persuasion (London: Sweet & Maxwell, 4th edn, 1991) ch II, though see the more critical contributions of D Pannick Advocates (Oxford: Oxford University Press, 1992); and A Phillips Professional Ethics for Scottish Solicitors (Edinburgh: Buttenworths, 1990).

8. R Cranston (ed) Legal Ethics and Professional Responsibility (Oxford: Clarendon Press, 1995); S Parker and C Sampford (eds) Legal Ethics and Legal Practice (Oxford: Clarendon Press, 1995); K Economides (ed) Ethical Challenges to Legal Education and Conduct (Oxford: Hart Publishing, 1998).

9. Nicolson and Webb, above n 1; A Boon and J Levin The Ethics and Conduct of Lawyers in England and Wales (Oxford: Hart Publishing, 1999); R O'Dair Legal Ethics: Text and Materials (London: Butterworths, 2001); J Griffiths-Baker Serving Two Masters: Conflicts of Interest in the Modern Law Firm (Oxford: Hart Publishing, 2002). See also the empirical studies of lawyer behaviour cited below n 73, which touch on ethical issues.

10. Vol 4 (1997).

11. In addition, to those in Legal Ethics, see D R F O'Dair ‘Ethics by the Pervasive Method - The Case of Contract’ (1997) 17 LS 305; L Sheinman ‘Looking for Legal Ethics’ (1997) 4 International Journal of the Legal Profession 139; M Blake and A Ashworth ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ [1998] Crim LR 16; D A Ipp ‘Lawyers’ Duties to the Court (1998) 114 LQR 63; D Nicolson and J Webb ‘Taking Lawyers’ Ethics Seriously (1999) 6 International Journal of the Legal Profession 109.

12. Hart Publishing.

13. See S Nelson ‘Reflections from the International Conference on Legal Ethics from Exeter’ (2004) 7 Legal Ethics 17.

14. Cutting across them and informing both are discussions of ethical theory: see eg J Webb ‘Being a Lawyer/Being a Human Being’ (2002) 5 Legal Ethics 130; D Nicolson ‘The Theoretical Turn in Professional Legal Ethics’ (2004) 7 Legal Ethics 17.

15. D Luban ‘The Noblesse Oblige Tradition in the Practice of Law’ (1988) 41 Vand LR 717.

16. Cf Burrage, above n 6; A Thornton ‘The Professional Responsibility and Ethics of the English Bar’ in Cranston, above n 8, pp 56–57. For residual echoes of this tradition, see eg Lund, above n 7, p 54; Queen v O'Connell(1844) 7 Ir LR 261 at 312; Smith v Smith (1882) 7 PD 84 at 89; Rondel v Worsley [1969] 1 AC 191, 227; below n 69 and accompanying text.

17. Lund, above n 7; Boulton, above n 7.

18. See below text above nn 28–31.

19. On the function of codes, see eg D L Rhode ‘Why the ABA Bothers: A Functional Perspective on Professional Codes’ (1980-81) 59 Texas LR 689; L H Newton ‘Lawgiving for Professional Life: Reflections on the Place of the Professional Code’ in A Flores (ed) Professional Ideals (Belmont, CA: Wadsworth Publishers, 1988); M S Frankel ‘Professional Codes: Why, How and with What Impact’ (1989) 8 Journal of Business Ethics 109; N Moore ‘The Usefulness of Ethical Codes’ (1989) Annual Survey of American Law 7; FC Zacharias ‘Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics’ (1993) 69 Notre Dame LR 225; M Coady and C Bloch (eds) Codes of Ethics and the Professions (Carlton South: Melbourne University Press, 1996); L E de Groot-van Leeuwen and W T de Groot ‘Studying Codes of Conduct: A Descriptive Framework for Comparative Research’ (1998) 1 Legal Ethics 155.

20. See eg D Rueschemeyer ‘Professional Autonomy and the Control of Expertise’ in R Dingwall and P Lewis (eds) The Sociology of the Professions: Lawyers, Doctors and Others (London: MacMillan, 1983) p 41; C Menkel-Meadow ‘Portia Redux: Another Look at Gender, Feminism and Legal Ethics’ in Parker and Sampford (eds), above n 8, pp 39–40; A A Paterson ‘Professionalism and the Legal Services Market’ (1996) 3 International Journal of the Legal Profession 137.

21. See H W Arthurs ‘Climbing Kilimanjaro: Ethics for Postmodern Professionals’ (1993) 6 Westminster Affairs 3 and ‘The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?’ (1995) 33 Alberta LR 800; B L Arnold and J Hagen ‘Careers of Misconduct: The Structure of Professional Deviance among Lawyers’ (1992) 57 American Sociological Review 771.

22. See eg P Shuchman ‘Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code’ (1968) 37 Geo Wash LR 244; T Schneyer ‘Professionalismas Politics: The Making of a Modern Legal Ethics Code’ in R Nelson, D Trubek and R Solomon (eds) Lawyers Ideals/Lawyers Practice (Ithaca: Cornell University Press, 1992); D Sugarman Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public Life of the Law Society, 1825–1914′ (1996) 3 International Journal of the Lgal Profession 81.

23. A Woolley ‘Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer’ (1996) 1 Canadian Journal of Law and Jurisprudence 61 at 71.

24. J Lichtenberg ‘What are Codes of Ethics?’ in Coady and Bloch (eds). above n 19, p 21ff.

25. Kenyon-Brown v Desmond Banks and Co (unreported, 1998). Lawtel transcript no C8600213.

26. See eg C Sampford with C Parker ‘Legal Regulation, Ethical Standard-Setting, and Institutional Design’ in Parker and Sampford (eds), above n 8, p 14ff; Nicolson and Webb, above n 1, p 97ff.

27. As in the case of confidentiality: see eg Nicolson and Webb, above n I, pp 258–259.

28. Edinburgh: Faculty of Advocates, 1988.

29. See Solicitors Professionaal Handbook 2004 (Edinburgh: W Green/Sweet & Maxwell, 2004).

30. Solicitors Professional Handbook 2004, above n 29.

31. London: General Council of the Bar, 2000, as amended.

32. London: The Law Society, 8th edn, 1999.

33. 'Rules for the Twenty-First Century: Final Consultation on a New Set of Professional Conduct Rules’ (London: The Law Society, 2004).

34. A C Hutchinson Legal Ethics and Professional Responsibility (Toronto: Irwin Law, 1999) (extracted in ‘Legal Ethics for a Fragmented Society: Between Professional and Personal’ (1998) 5 International Journal of the Legal Profession 176 and ‘Taking it Personally: Legal Ethics and Client Selection’ (1998) 1 Legal Ethics 168). See also eg Webb, above n 14; D Luban ‘Epistemology and Moral Education’ (1983) 33 JLE 636; H L Feldman ‘Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?’ (1996) 69 Southern Calif LR 885; S G Kupfer ‘Authentic Legal Practices’ (1996) 10 Georgetown Journal of Legal Ethics 33.

35. W H Simon The Practice of Justice: A Theory of Lawyers ‘Ethics (Cambridge, Mass: Harvard University Press, 1998) pp 9–11, 69–74, chs 6–7.

36. Above n 1, pp 115–116, 242–247, 263–275, 280–286.

37. As regards these factors, see below nn 76, 79–80, 90–91, 128–132 and associated text.

38. Deon being the ancient Greek for duty.

39. See Z Bauman Postmodern Ethics (Oxford: Blackwell, 1993), esp Introduction and chs 1 and 3; A J Dawson ‘Professional Codes of Practice and Ethical Conduct’ (1994) 11 Journal of Applied Philosophy 146.

40. Known as act-deontology: see eg W K Frankena Ethics (Englewood, Cliffs, NJ: Prentice-Hall, 1963) pp 21–23; T L Beauchamp Philosophical Ethics: An Introduction to Moral Philosophy (New York: McGraw-Hill, 1982) pp 115–116.

41. See eg L Kohlberg ‘Moral Stages and Moralization: The Cognitive-Developmental Approach’ in T Lickone (ed) Moral Development and Behaviour (New York: Holt, Rinerhart and Winston, 1976). Essays on Moral Development, Vol 1: The Philosophy of Moral Development (New York: Harper and Row, 1981) and Essays on Moral Development, Vol 2: The Psychology of Moral Development (New York: Harper and Row, 1984); L Kohlberg, C Levine and A Hewer Moral Stages: A Current Formulation and a Response to Critics (London: Karger, 1983).

42. See Bauman, above n 39, Life in Fragments: Essays in Postmodern Morality (Oxford: Blackwell, 1995). esp ch 1 and ‘What Prospects of Morality in Times of Uncertainty?’ (1998) 15 Theory Culture and Society 11. See also Dawson, above n 39, at 153; S Salbu ‘Law and Conformity, Ethics and Conflict: The Trouble with Law-Based Conceptions of Ethics’ (1992) 68 Ind LJ 101.

43. 'What Prospects of Morality', above n 39, p 20 (emphasis removed).

44. But see L J Duckett and M B Ryden ‘Education for Ethical Nursing Practice’ in J Rest and D Narvaez (eds) Moral Development in the Professions: Psychology and Applied Ethics (Hillsdale, NJ: Lawrence Erlbaum Associates, 1994) p 61, who argue that ‘implementation’ involves a fifth, albeit interpersonal rather than purely psychological, component.

45. The chapters in Rest and Narvaez (eds), above n 44, esp ch 1: J Rest ‘The Major Components of Morality’ in W Kurtines and J Gewirtz (eds) Moraliry, Moral Behaviour and Moral Development (New York: Wiley, 1984); D Narvaez and J Rest ‘The Four Components of Acting Morally’ in W M Kurtines and J L Gewirtz (eds) Moral Development: An Introduction (Boston: Allyn and Bacon, 1995). NB: whereas the above refer to ‘moral character’ as the fourth component, I use the term ‘moral courage', because of my argument that developed moral character involves all four components.

46. See eg Nicolson and Webb, above n 1, pp 34–38, and 46–49 regarding feminism and postmodernism; and J C Tronto Moral Boundaries; A Political Argument for an Ethic of Care (London: Routledge, 1993) regarding Scottish Enlightenment philosophers. See also S G Clarke and E Simpson ‘Introduction: The Primacy of Moral Practice’ in S G Clarke and E Simpson (eds) Anti-Theory in Ethics and Moral Conservatism (New York: State University of New York, 1989).

47. See J Rest ‘Background: Theory And Research’ in Rest and Narvaez (eds), above n 44, pp 21–22, and ‘Can Ethics be Taught in Professional Schools? The Psychological Research’ (1988) 1 Ethics Easier Said Than Done 22.

48. Feldman, above n 34, esp at 904–908.

49. Duckett and Ryden, above n 44, p 61.

50. See eg Dawson, above n 39; Feldman, above n 34, at 932ff.

51. See Nicolson and Webb, above n 1, ch 8.

52. Another might be to utilise the codes’‘spirit’ (F Silverman Handbook of Professional Conduct for Solicitors (London: Butterworths, 1989) p 69; Inns of Court School of Law Professional Conduct (London: Blackstone, 2nd edn, 1997) p 2), but whether a spirit exists and is identifiable by individual practitioners is highly dubious: see Sheinman, above n 11, at 143.

53. No doubt, lawyers could (and in fact do) seek authoritative interpretations from their professional bodies. However, lawyers might not care sufficiently about acting morally to consult them, some moral issues might require immediate resolution, whereas the approach of always seeking advice in cases of ambiguous aspirational norms would be impractical.

54. O'Dair, above n 9, p 5.

55. Rhode, above n 19, at 709.

56. Abel, above n 6, pp 134–135 and 252–253; M Zander ‘Only the talk is tough’Gazette 95, 2 December 1998, p 46; The Times, 19 May 1998, p 9.

57. M M Coady ‘The Moral Domain of Professionals’ in Coady and Bloch (eds), above n 19, p 49.

58. From the Greek ‘arete’ meaning excellence, referring here to excellences of moral character (ie virtues).

59. But see J Haldane ‘Medieval and Renaissance Ethics’ in P Singer (ed) A Companion to Ethics (London: Blackwell, 1991) pp 143–144 regarding the continuing legacy of Aristotle and Aquinas merger of his ideas with Catholic doctrine.

60. See eg G E M Anscombe ‘Modern Moral Philosophy’ (1958) 33 Philosophy 1; A MacIntyre After Virtue: A Study in Moral Theory (London: Duckworth, 2nd edn, 1985); B Williams Ethics and the Limits of Philosophy (London: Fontana Press, 1985).

61. The following account draws on Beauchamp, above n 40, ch 5; Dawson, above n 39; Feldman, above n 34; Frankena, above n 40, ch 4; A Flores ‘Introduction: What Kind of Person Should a Professional Be’ in Flores, above n 19; G Pence ‘Recent Work on Virtues’ (1984) 21 American Philosophical Quarterly 281 and ‘Virtue theory’ in Singer, above n 59; R Hursthouse On Virtue Ethics (Oxford: Oxford University Press, 1999). See also J J Kupperman Character (New York: Oxford University Press, 1991) and ‘Character and Ethical Theory’ (1988) 13 Midwest Studies in Philosophy 115, regarding what he describes as character, rather than virtue, ethics.

62. Cf O O'Neill Toward Justice and Virtue: A Constructive Account of Practical Reasoning (Oxford: Blackwell, 1998) p 72.

63. See Aristotle The Nicomachean Ethics (Amherst, NY: Prometheus Books, 1987) esp Bk II, ch I and Bk VI, ch XIII; and see further Luban, above n 34; D Carr Educating the Virtues: An Essay on the Philosophical Psychology of Moral Development and Education (London: Routledge, 1991).

64. J McDowell ‘Virtue and Reason’ (1979) 62 The Monist 331 at 347.

65. Contemporary deontologists and consequentialists are beginning to address many of the central aretaic concerns (McDowell, above n 64, esp at 3–4, 54), but it remains to be seen whether they can coherently incorporate them and give them the attention they deserve.

66. See eg Hursthouse, above n 61, ch 4; P Foot Virtues and Vices (Oxford: Basil Blackwell, 1978) pp 13–14.

67. McDowell, above n 64, at 333.

68. See D Luban and M Millemann ‘Good Judgment: Teaching Ethics in Dark Times’ (1995) 9 Georgetown Journal of Legal Ethics 31.

69. Above n 28.

70. See above n 16.

71. See D Nicolson ‘Demography, Discrimination And Diversity: Legal Ethics And Social Background’ (2005) 12 International Journal of the Legal Profession 201.

72. D Rhode ‘Moral Character as Professional Credential’ (1985) 94 Yale LJ 411: Hutchinson, above n 34, p 62, who also notes that character assessment comes too early, in that professional entrants have not yet tested their character through actual ethical dilemmas in practice.

73. J Baldwin and M McConville Negotiated Justice: Pressures to Plead Guilty (London: Martin Robertson, 1977); G Davis Partisans and Mediators (Oxford: Clarendon Press, 1994); M McConville, J Hodgson, L Bridges and A Pavlovic Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994); A Boon ‘Ethics and Strategy in Personal Injury Litigation’ (1995) 22 JLS 353; H Genn Hard Bargaining (Oxford: Clarendon Press, 1997); B Neale and C Smart “Good” and “Bad” Lawyers? Struggling in the Shadow of the New Law (1997) 19 Journal of Social Welfare & Family Law 377; M McConville ‘Plea Bargaining: Ethics and Politics’ (1998) 25 JLS 562; Griffiths-Baker, above n 9.

74. See the studies cited in above n 56; and A Sherr and L Webley ‘Legal Ethics in England and Wales’ (1997) 4 International Journal of the Legal Profession 109 at 121.

75. Cf Burrage, above n 6, at 54; Thornton, above n 16, pp 56–57.

76. See eg Burrage, above n 6, at 54; Nicolson and Webb, above n 1, ch 3, esp pp 60–61; Boon and Levin, above n 9, ch 3, esp pp 89–94; A Francis ‘The Business Context: Legal Ethics, the Marketplace and the Fragmentation of Legal Professionalism’ (2005) 12 International Journal of the Legal Profession 173.

77. Phillips, above n 7, esp preface and ch 1. See also the introduction to the Code of Conduct for Scottish Solicitors, above n 29.

78. See Nicolson and Webb, above n 1, pp 39–46.

79. Nicolson and Webb, above n 1, chs 6 and 8.

80. See eg Nicolson and Webb, above n 1, chs 6–9; Boon and Levin, above n 9, esp pp 26–36; O'Dair, above n 9, esp ch 5; R Cranston ‘Legal Ethics and Professional Responsibility’ in Cranston, above n 8; Special Issue ‘Lawyers’ Duties, Adversarialism and Partisanship in UK Legal Ethics (2004) 7 Legal Ethics 167.

81. A Paterson ‘Legal Ethics: Its Nature and Place in the Curriculum’ in Cranston, above n 8, p 177.

82. Cf A Crawley and C Bramall ‘Professional Rules, Codes and Principles Affecting Solicitors (or What Has Professional Regulation to do with Ethics?)’ in Cranston, above n 8, p 105.

83. See eg O'Neill, above n 62; T L Beauchamp and J F Childress ‘Virtues and Conscientious Actions’ in Flores, above n 19.

84. Eg Hursthouse, above n 61, ch 1, argues that virtues are no less vague in guiding behaviour than the principle of utility or the idea of applying correct moral rules, whereas her discussion of the role of reason in virtuous action (pp 124–125) counters the idea that moral character may include unthinking prejudices.

85. But not essential: H I Dreyfus and S E Dreyfus ‘What is Morality? A Phenomenological Account of the Development of Ethical Expertise’ in D Rasmussen (ed) Universalism and Communitarianism (Cambridge, Mass: MIT Press, 1990) p 258.

86. See Frankena, above n 40; Beauchamp and Childress, above n 83; and O'Neill, above n 62, who have sought to integrate the deontic and aretaic traditions. In the context of professional ethics generally and lawyers’ ethics see, respectively, B Jennings ‘The Regulation of Virtue: Cross-Currents in Professional Ethics’ (1991) 10 Journal of Business Ethics 561; Nicolson, above n 14.

87. See Kupperman (1991), above n 61, ch 3.

88. See eg Kohlberg, above n 41; the essays in Rest and Narvaez (eds), above n 44; Rest, above n 45; J Rest and D Narvaez ‘The College Experience and Moral Development’ in W M Kurtines and J L Gewirtz Handbook of Moral Behaviour and Development (Hillsdale, NJ: L Erlbaum, 1991).

89. Above n 63, esp Bk X, ch 10. See also Dreyfus and Dreyfus, above n 85; R S Peters ‘Moral Development and Moral Learning’ (1974) 58 The Monist 541.

90. See generally the essays in Rest and Narvaez (eds), above n 44, esp that by Sprinthall; D A J Richards ‘Moral Theory, the Developmental Psychology of Ethical Autonomy and Professionalism’ (1981) 31 JLE 359; and in relation to legal ethics education, Paterson, above n 81.

91. See generally N Redlich ‘The Moral Value of Clinical Legal Education: A Reply’ (1983) 33 JLE 613; M Jewell ‘Teaching Law Ethically: Is It Possible?’ (1984) 8 Dal LJ 474; S Hartwell ‘Moral Development, Ethical Conduct and Clinical Education’ (1990) 35 New Y ork Law School Law Review 131; I Johnstone and M P Treuthart ‘Doing the Right Thing: An Overview ofTeaching Professional Responsibility’ (1991) 41 JLE 75; J Webb ‘Conduct, Ethics and Experience in Vocational Legal Education: Opportunities Missed’ in Economides (ed), above n 8; A Evans ‘The Values Priority in Quality Legal Education: Developing a Values/Skills Link through Clinical Experience’ (1998) 32 Law Teacher 274; and more specifically in relation to character formation, Luban, above n 34; Luban and Millemann, above n 68; R Condlin ‘The Moral Failure of Clinical Legal Education’ in D Luban (ed) The Good Lawyer: Lawyer's Roles and Lawyer's Ethics (Totowa, NJ: Rowman and Allanheld, 1983); D Nicolson ‘Making Lawyers Moral? Moral Character and Ethical Education', paper presented to the First International Legal Ethics Conference, University of Exeter, July 2004.

92. See Sarnpford and Parker, above n 8, p 17.

93. Hutchinson, above n 34, esp p 15; Kupfer, above n 34.

94. See Moore, above n 19, at 15; Zacharias, above n 19, at 223.

95. See eg Lichtenberg, above n 24; Cranston, above n 8, pp 5–6; Paterson, above n 81, pp 176–177 and ‘Legal Ethics in Scotland’ (1997) 4 International Journal of the Legal Profession 25 at 37; D Webb ‘Book Review’ (2000) 3 Legal Ethics 90 at 91.

96. See eg Feldman, above n 34; Hutchinson, above n 34; Zacharias, above n 19; Salbu, above n 42; R E Loder ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987) 1 Georgetown Journal of Legal Ethics 311.

97. D Luban ‘Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics’ (1981) 40 MdLR 451 at 460–461.

98. Though, paradoxically, the greater such a consensus, the less the rules are needed.

99. See above n 22.

100. G J Postema ‘Moral Responsibility in Professional Ethics’ (1980) 55 NYULR 63 and ‘Self-Image, Integrity and Professional Responsibility’ in Luban (ed) (1983), above n 91; A Eshete ‘Does a Lawyer's Character Matter?’ in Luban (ed) (1983), above n 91; B Williams ‘Professional Morality and its Dispositions’ in Luban (ed) (1983), above n 91; J J Flynn ‘Professional Ethics and the Lawyer's Duty to Self’ (1976) 3 Washington University Law Quarterly 429; D S Kleinberger ‘Wanted: An Ethos of Personal Responsibility - Why Codes of Ethics and Schools of Law Don't Make for Ethical Lawyers’ (1989) 21 Connecticut LR 365.

101. Cf R Wasserstrom ‘Lawyers as Professionals: Some Moral Issues’ (1975) 5 Human Rights 1 at 9 and ‘Roles and Morality’ in Luban (ed) (1983), above n 91, pp 29–30; W H Simon ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’ (1978) 29 Wis LR 103.

102. Salbu, above n 42, at 166.

103. Above n 34, p 182.

104. Practitioner quoted in G Hazard Ethics in the Practice of Law (New Haven: Yale University Press, 1978)p 153. See also Phillips, above n 7, pp 12 and 129.

105. See D McBarnet and C Whelan ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’ (1991) 54 MLR 848.

106. Luban and Millemann, above n 68, at 50.

107. Kupfer, above n 34, at 63.

108. Flores, above n 61, p 2.

109. Flores, above n 61, p 3.

110. Luban, above n 97, at 461.

111. Above n 19. See more generally J J White ‘Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation’ (1980) American Bar Foundation Research Journal 926 at 935.

112. See above nn 19–23 and associated text.

113. Crawley and Bramall, above n 82, p 105.

114. See above n 36. See also Simon, above n 35.

115. Although occasional categorical rules for important ethical obligations would not seriously undermine the advantages of contextualism, it is difficult to think of any which are not also obvious legal obligations (eg the rule against stealing from clients). Even the duty to represent criminal defendants despite moral qualms, I will argue, should be merely a strong presumption rather than a categorical rule.

116. But not as great as might be expected: see Simon, above n 35, pp 70–71.

117. See Nicolson and Webb, above n 1, ch 4; J Webb and D Nicolson ‘Institutionalising Trust: Ethics and Responsive Regulation of the Legal Profession’ (1999) 2 Legal Ethics 148.

118. The following is based on Nicolson and Webb, above n 1, chs 6–8 passim.

119. Cf Simon, above n 35, who limits his relevant factors to those which promote (legal as opposed to substantive) justice, by enabling lawyer to vindicate a case's ‘legal merits’. Space constraints preclude a full criticism of this narrow view of justice, but see Nicolson and Webb, above n l, p 220.

120. See the references in Nicolson and Webb, above n 1, p 193 nn 84–86.

121. Nicolson and Webb, above n 1, p 204 n 180.

122. See Baldwin and McConville, McConville, Davis, all above n 73.

123. Hutchinson, above n 34, ch 5; D Nicolson ‘Afterword: In Defence of Contextually Sensitive Moral Activism’ (2004) 7 Legal Ethics 269 at 270–272, responding to A Boon ‘Cause Lawyers and the Alternative Ethical Paradigm: Ideology and Transgression’ (2004) 7 Legal Ethics 231 at 250–268.

124. Hutchinson, above n 34, p 73.

125. G Harman ‘Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error’ (1999) 99 Proceedings of the Aristotelian Society 315, ‘The Nonexistence of Character Traits’ (2000) 100 Proceedings of the Aristotelian Society 223 and ‘No Character or Personality’ (2003) 13 Business Ethics Quarterly 87.

126. J M Doris ‘Persons, Situations, and Virtue Ethics’ (1998) 32 NODS 504 and Lack of Character: Persnnality and Moral Behaviour (Cambridge: Cambridge University Press, 2002); P Vranas ‘The Indeterminacy Paradox: Character Evaluations and Human Psychology’ (2005) 39 NoûS 1.

127. N Athanassoulis ‘A Response to Harman: Virtue Ethics and Character Traits.’ (2000) 100 Proceedings of the Aristotelian Society 215; M Merritt ‘Virtue Ethics and Situationist Personality Psychology’ (2000) 3 Ethical Theory and Moral Practice 365; J J Kupperman ‘The Indispensability of Character’ (2001) 76 Philosophy 239; G Sreenivasan ‘Errors about Errors: Virtue Theory and Trait Attribution’ (2002) 111 Mind 47; C Miller ‘Social Psychology and Virtue Ethics’ (2003) 7 The Journal of Ethics 365; R C Solomon ‘Victims of Circumstances? A Defense of Virtue Ethics in Business’ (2003) 13 Business Ethics Quarterly 43; R Kamtekar ‘Situationism and Virtue Ethics on the Content of Our Character’ (2004) 114 Ethics 458; L Besser-Jones ‘Social Psychology, Moral Character, and Moral Fallibility’ (unpublished manuscript).

128. See eg D Webb ‘Civil Advocacy and the Dogma of Adversarialism’(2004) 7 Legal Ethics 210;L Webley ‘Divorce Solicitors and Ethical Approaches - The Best Interests of the Client and/or the Best Interests of the Family?’ (2004) 7 Legal Ethics 231.

129. See the works cited in above n 76.

130. Bauman, above n 39, pp 19–20.

131. D Luban Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988) pp 123–125.

132. Webb, above n 78, p 271.