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Legal Ethics Exam Cram Guide: Lectures/Tutorials/Workshops (15 credits) Lecture 1: Introduction to and History of Legal Ethics What is Legal Ethics?  The Lawyers’ profession enjoyed considerable control over entry into their ranks and the discipline of their members. Their traditions took centuries to evolve, a vibrant mix of historical accident high ideals and political necessity.  These practices were collectively referred to as professional ethics, a term investing them with a moral quality.  Hence, legal ethics is the minimum standards of appropriate conduct within the legal profession. It is the behavioural norms and morals which govern lawyers.  Legal professions have long been associated with distinctive presentation, values and norms, some of which seem to run counter to what might be called the ordinary morality of society.  The idea of professional ethics is intelligible only if one understands professions, their aspirations and their challenges.  Lady Mare stated in A time for change: report of the Committee on the Future of the Legal Profession: o ‘In certain respects, the legal profession occupies a position which differs from that occupied by other professions. Lawyers must always act in their clients’ best interests and must refuse to act if a conflict of interest occurs; lawyers have a duty to the court; they are sometimes required to represent clients in unpopular causes; they have a duty to uphold the rule of law; for all these reasons the ordinary commercial considerations cannot be decisive if the traditional character and functions of an independent legal profession are to be preserved.’ According to Kronman:  Every education in legal ethics must be an induction into a culture into a distinctive way of life, into the profession of law.  The word profession suggests a certain prestige. It implies that the activity to which it is attached possesses a unique dignity that other nonprofessional jobs do not.  Importance of legal professionalism: 1. The importance of the role of lawyers in society 2. A lawyer’s obligation to promote the public good 3. Historical traditions of the law 4. Lawyer’s serve the private interests of their clients’, but they also care about the integrity and justice of the legal system that defines the public order.

TUTORIAL 1: Introduction to and History of Legal Ethics Please answer the following questions based upon your reading of Kronman’s article ‘The Law as a Profession’ (available on the VLE) and also your wider reading for this topic: 1. What is Legal Ethics? LE is the minimum standards of appropriate behaviour within the legal profession. It is the behavioural norms & morals which govern lawyers. 2. Explain the relationship between ethics and morals. Morals are principles of right or wrong, and ethics are moral principles governing behaviour. 3. What is meant by education in Legal Ethics? Pg.29- every education in LE must be an induction into a culture, into a distinctive way of life, into the profession of law. 4. What does Kronman mean by ‘every profession is a job but not every job is a profession’? pg.31- The word profession suggests a certain prestige. It implies that the activity to which it is attached possesses a unique dignity that other non-professional jobs do not. Kronman states that a profession is a job + a way of life! Way of life:  Dignity, prestige  Codes of conduct  Disciplinary tribunals  Duty to the courts, duty to the client, duty to the State and duty to the public at large.  Uphold the legal system. 5. According to Kronman, the practice of law has four characteristic features that make it a ‘profession’. What are these four characteristics? Pg.31-34- 1. The law is a public calling; 2. The non-specialized nature of law practice; 3. The capacity for judgement; and 4. time, and the location of law within it. Please, answer the following questions based upon your reading of Sampford’s article, ‘What is a Lawyer Doing in a Nice Place Like This? Lawyers and Ethical Life’ (available on the VLE): 6. What does Sampford tell us about the rise of ethics and jurisprudence; 7. What is Sampford’s view of ethics in practice? And 8. What does Sampford say about the content of legal ethics? LE (as opposed to jurisprudence &legal theory) was slower to take-off partly as it was seen as really about rules and belonging to the vocational course.

Judge’s decisions may be based on precedents and legal reasoning, but values underlie decisions. By the 1980s, judges were more likely to discuss values, ethics and concepts of justice openly.

Lecture 2: The Role of Lawyers in Society Introduction: Lawyers owe their duty to profession, the court, the state, the public and client. It is the client that they must primarily commit to through acting in their best interests and maintain confidentiality. According to Kronman, law is a profession and not a job, which has its own set of characteristics. According to Sciulli, the characteristics of a profession include specialist knowledge, autonomy, social prestige, strict entry requirements, codes of ethics, fiduciary duty, sense of vocation, state license and community interests. Professional ethics, according to Durkheim, includes moral discipline which feeds the needs of individual professional satisfaction. Otherwise, lawyers may get out of control. Professional ethics, according to Durkheim, are developed from of normative system. Norms: Norm is a pattern of behaviour: a personal belief of a community or a system. It is the standard behaviour that is expected from a community. Social norms include the customs of a society, whereas, professional norms include customs of the profession (e.g. in the legal profession norms, which could be that: 1. Professional norms are the same as ordinary norms of behaviour, or 2. Professional norms specify how professionals must relate ordinary norms to any circumstances, or 3. Professional norms account the role of the professional while applying the ordinary norms, or 4. Professional norms are entirely independent of ordinary norms Relating to the “independence from ordinary norms”, lawyers must be independent politically and from any other influences in order to have autonomy and uphold the rule of law. To give this effect, the standard conception was developed.  Professional ethics represents a form of moral discipline. Although some elements are contained in regulations and may be enforced, others are merely an aspiration to high moral standards.  Greenwood says that all professions have five features: 1) Systemic theory; 2) Authority; 3) Community sanction; 4) Ethical codes; and 5) Professional culture

 Parsons identifies the orientation to the public good as one of the critical functions of professions, which works for the benefit of society beyond the professional sphere.  Larson is hostile to this professional commitment to the public interest, seeing ‘professionalization’ as the aggressive pursuit of market monopoly/  Moorhead, Sherr and Paterson argue that far from serving the public good, professional protectionism and exclusion of competition forces up the price of work, resulting in incompetent service. Professional Norms:  Groups of people inevitably develop behaviour patterns described as norms. There are various descriptions of norms, such as the ‘characteristic spirit and beliefs of the community, people, system…or person’. Some norms are merely descriptive of standard behaviour- customs, e.g. while others are injunctive, concerned with what people ought to do.  Durkheim argued that complex societies accommodate a range of different normative systems parallel to those of broader society. He conceived of professional ethics as one of the most developed examples, the distinctive moral orientation emerging from the way that individuals do their work and from the values emerging from the coalition of interests of the occupation generally. Durkheim is saying that lawyers need more moral discipline because if they do not, then nobody can control them.  However, it can be argued that there is no substantial difference between industrial norms and those of broader society (see Bayles).  Bayles explored four possibilities for the relationship between social and professional norms. The 1st is that professional norms are the same as ordinary norms of behaviour. The 2nd is that they specify how professionals must relate ordinary norms to the situations in which they find themselves; the 3rd is that they take into account the role of the profession in applying ordinary norms, and 4th that they are entirely independent of ordinary norms. o Bayles is trying to look at the r’ship between professional norms (that lawyers comply with) and the social norms (that human beings comply with). 1. We expect lawyers to be honest as well as everyone else 2. Lawyers who handle people’s money need to be honest. However, ordinary people in the situation when handling people’s money are not. 3. Lawyers need to separate their money from their client’s money. However, ordinary people would not be put in that situation. 4. Lawyers will not reveal knowledge of clients crime. However, an ordinary citizen needs to report a crime if seen one. Standard Conception: The standard conception of a lawyer’s role was developed by US philosophers basing it on the American Bar Association model code, case laws and other things. The conception describes how to approach clients and fulfil their duties. The conception has two principles- neutrality and partisanship.

Principle of neutrality requires lawyers to present cases on behalf of those which are morally disagreeable, e.g. defending sexual offenders. The fundamental nature of neutrality is that lawyers have a duty not to select their clients, even if they are criminals. This upholds the civil rights of fair trial and demonstrates the promise of tolerating differences. The second nature of neutrality is that lawyers must be emotionally detached from their client’s purpose. They only focus on the legalities of the case and offer impartial and objective advice, regardless of the outcome of the litigation. In England and Wales, the codes of conduct suggest little engagement with standard conception. English barristers are obligated to accept brief instructions in areas they are practising so that there will be no discrimination in choosing cases. This is called the cab-rank rule. Solicitors, however, do not have such a duty to listen to any briefs. However, they cannot pick and choose clients unlawfully. Contrary to US neutrality principle, the English implementation is not anything like moral neutrality. The principle of partisanship asks lawyers to follow the instructions of the clients, even if the outcome is unjust. Again, e.g. acquittal of criminals. Here, the client is pitted against the power of the state and hence partisan fulfils the promise to respect individual rights. Lawyers cannot compromise the case, just because it is immoral or the client is a criminal. The most practical example of partisanship is confidentiality, where the lawyer keeps his client’s dirty secrets (Annesley v Anglesey). English partisanship imposes the same but with little commitment to the client’s autonomy and hence weaker partisanship. Barristers and solicitors have the discretion to serve their client’s interests based on their codes of conduct, which they cannot ignore. Furthermore, in cases of conflict between principles, the case must be resolved in a way that serves the public interests, which cannot be seen in the US version. This stresses that lawyers should uphold the rule of law and the administration of justice with integrity and without compromising discretion. These duties are enforced in the Legal Services Act of 2007. These two principles are supported by a third principle, which is, the principle of non-accountability. Accountability principle requires the lawyer to follow the partisanship and neutrality principle without any moral accountability for consequence. Arguments in favour: Charles Fried tried to justify partisan basing the lawyer-client relation on friendship and friends would do things ordinary people will not do. The lawyer, in this case, is a special purpose friend, who watches your back and your partner in crime. This view was criticised, though, because unquestionable loyalty is only reserved for very close people and not to people who take money for services. Lawyers have little concern for clients personal well-being, therefore, comparing them to family/friends is difficult to accept. Markovits argues that lawyers must be neutral and partisan if the society is to get the political benefit through resolving disputes.

Dare argues that partisanship only allows lawyers to be committed reasonably, rather than aggressively. He calls it mere zeal which is desirable and necessary to serve the reasonable interests of their clients. Wendel argues that standard conception is not a commitment to clients, but a commitment to law and this fidelity to the law allows lawyers to provide the services to clients to which they are entitled. Again, his view was inconsistent because if lawyers have to represent unpopular clients based on fidelity to law, then they can also refuse unpopular clients based on the same fidelity. His view poses a mere excuse for ignoring a social rule. Arguments against: Scholars argue that standard conception requires lawyers to follow client’s immoral instructions, just because they are within the law. Also, lawyers have to represent something they do not necessarily believe in, which is deceitful. Lawyers can use tactical delay for their clients, which is considered as cheating. This prevents lawyers from exercising ethical discretion overall. This is particularly dangerous in cases of criminal trials, where real criminals may go unpunished. This distorts the professional, ethical role of lawyers. Neutrality demonstrates lawyers as amoral manipulators of law, i.e. shallow. Their client’s interests contradict the overall social good. It may also conflict other fields which include personal conflicts, such as domestic violence or sexual offence cases, where such an attitude may come as cold and uncaring and even daunting on the victims. Alternatives:  Wendel: fidelity to law  Simon: justice Wi l l i am Si mons ugge s t st ha tl a wye r sha vemor ala ut onomywhenma ki nge t hi c a lde c i s i ons . The ys houl dha vet hedi s c r e t i ont odi s obe ywhe ni tpr oduc e si mmor a lout c ome s .Lubanas ks f ormor ala c t i vi s m wher el a wyer ss houl dac tasi ft headve r s ar ys ys t em wasnota vai l abl et o t hem.Pos t e maa r gue st ha tl a wye r smus tha vepe r s onalmor a l i t yi nt hei rpr of e s s i onalr ol e . Heal s oar gue st ha tl a wyer sr e f us ec l i e nt si ne xt r e mes i t ua t i ons ,s uc hast er r or i s mc as e s . Ther e al i t yofs t a ndar dc onc e pt i oni nl a wyer ’ sbeha vi our : Whi l et hepr i nc i pl e shol donevi e w,s t udi e sofi t sac t ualf ol l owi ngs howe dt ha tt hepr i nc i pl e s ofne ut r al i t ydonotpos eanypr obl e msast heor i e smakei toutt obe .Thepr obl e mss t ar t e di n pr i nc i pl e s ,r a r e l yar i s e .I nr e al i t y ,mos tl a wye r sdonott e ndt or e pr e s entc l i e nt ’c as e swhi c h goa gai ns tt he i rval ue sandbe l i e f s .The r e f or e ,t hepr obl e mss t a t e dar emer e l yi nt he or yand noti nr e all i f e . I ss t a ndar dc onc ept i onj us t i fied? Par t i s anma ybene c e s s ar ywhe nt heoppone nti st hes t a t e ,l i kei nc r i mi nalpr oc e edi ngsand ne ut r al i t yi sr e qui r e dt ouphol dpl ur al i s m. Li ke wi s e ,r e f us i ngc l i e nt sbas edonal ac kofbe l i e f i snotve r ypr a c t i c albe c aus ee ve r yonehast her i ghtt or e pr e s entt he ms e l ve s . Professional Codes:  Aristotle, Plato and Hart distinguished positive law, legal rules made by humans based on community norms, from the ‘natural law’ of ethics.

 Posner points out that the state enforces another distinction between law and other norms, i.e. law. In contrast, other norms are often enforced informally by gossip, disapproval, ostracism and even violence.  Professional ethics crosses the boundary between law and morals, providing formal sanctions for rules not made directly by the state, but under its authority.  Johnson says that codes of behaviour are often seen as the final stage of professionalism. Also, Carr and Wilson say that it represents both the point when the professional community is sufficiently defined to be represented in writing and when its ethical commitments can form the basis of a contract with society for the provision of services.  The legal profession enacted formal codes relatively recently. The Bar Code resulted from a recommendation of the Benson Commission in 1979.  The Law Society’s Guide to the Professional Conduct of Solicitors dates from 1960, steadily growing, with the incorporation of much legislative material, accounts rules and periodic revision, until replaced by the trimmer Solicitors’ Code of Conduct 2007.  The late arrival of codes is partly explained by outside pressure to introduce them reflecting the fact that such documents generally serve one of two purposes. Codes of Ethics tend to be outward-facing, articulating professional values for a range of interested parties. Codes of conduct are likely to be internally focused, setting out restrictions and providing guidance on behaviour. The legal profession codes are a compromise between these possibilities, providing regulation for members and addressing a wider audience by articulating values.  Many argue that professional codes of conduct represent only ‘a single piece of a larger mosaic of considerations that are morally relevant to a lawyer’s conduct’ (Giegerich). Professionals must aspire to standards of integrity and service beyond those required by detailed rules (Cranston), act morally where rules of conduct do not expressly cover a situation (Durkheim) and consider the impact of personal behaviour on their profession.  PA Facione, Scherer and Attig says that this more extensive obligation of lawyers does embrace some kind of philosophical enquiry to how the world should be and what can make it better.  Lawyers like philosophers should ask themselves questions- i.e. what are good acts of a lawyer?  Thepr of e s s i onalc ode si nc l udet heBarSt andar dsBoar dHandbook20 15f or bar r i s t e r s , t heSol i c i t or sRe gul a t i onAut hor i t yHa ndbook20 11f ors ol i c i t or s ,t heCode ofEt hi c sf orc l i e nt sandt heCode sofConduc tf ort hei nt e r nals ys t e m.The s eCode s e mphas i s e st ha ti ndepe nde nc e ,i nt e gr i t yandc onfident i al i t yar et hec or eval ue si nt he l e galpr of e s s i on,al ongwi t ht hepur s ui tofj us t i c eandc ommi t me ntt opubl i cs e r vi c e . Bot ht heSRAPr i nc i pl e s201 1andt heBSB20 15r e qui r el a wye r st ouphol dt her ul eof l a w,ac twi t hi nt e gr i t y ,notc ompr omi s ei nde pe nde nc e ,ac ti nt hei nt e r e s tofc l i e nt s , mai nt ai nc onfide nt i a l i t y ,f ol l ow r e gul a t i onsandobs e r vet headmi ni s t r a t i onofj us t i c e . Professional Values:

 A recent president of the Law Society asserted that the core values of the solicitors’ profession are independence, integrity and confidentiality (Williamson). Observers of legal professions sometimes argue that they should prioritise different values. Some argue that the first goal of legal professionalism should be public service, assumed to be a public good since antiquity and a great part of the rhetoric of Anglo-American lawyers (Pound).  A value asserted in all lawyer codes, but with particular resonance today is independence. By independence, the legal profession usually means exercising judgement free from the influence of others, mainly clients but also the state (Boon).  Simon says the primary duty of a lawyer is to pursue justice.  Nicolson argues that this commitment to justice has a wide-reaching significance and is tied to the idea of being a professional.  Gidden states that another candidate for a prime professional value is promoting the moral autonomy of clients. The main goal of the liberal state is the pursuit of human emancipation from exploitation, inequality an...